Martinez Gutierrez v. Holder , 383 F. App'x 609 ( 2010 )

FILED
NOT FOR PUBLICATION JUN 10 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
PEDRO MARTINEZ GUTIERREZ; No. 08-70715
TERESITA DE JESUS ALFARO
CADENA, Agency Nos. A096-051-860
A096-051-861
Petitioners,
v. MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted May 25, 2010 **
Before: CANBY, THOMAS, and W. FLETCHER, Circuit Judges.
Pedro Martinez Gutierrez and Teresita De Jesus Alfaro Cadena, natives and
citizens of Mexico, petition for review of the Board of Immigration Appeals’
(“BIA”) order denying their motion to reopen removal proceedings. Our
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
jurisdiction is governed by 8 U.S.C. § 1252. We review for abuse of discretion the
denial of a motion to reopen, Perez v. Mukasey, 516 F.3d 770, 773 (9th Cir. 2008),
and we deny in part and dismiss in part the petition for review.
The BIA did not abuse its discretion in denying as untimely petitioners’
motion to reopen because the motion was filed almost ten months after the BIA’s
October 5, 2006, order dismissing the underlying appeal. See 8 C.F.R. § 1003.2;
see also Dela Cruz v. Mukasey, 532 F.3d 946, 949 (9th Cir. 2008) (per curiam)
(“[T]he pendency of a petition for review of an order of removal does not toll the
statutory time limit for the filing of a motion to reopen with the BIA.”).
To the extent petitioners challenge the BIA’s decision not to invoke its sua
sponte authority to reopen proceedings, we lack jurisdiction. See Ekimian v. INS,
303 F.3d 1153, 1159 (9th Cir. 2002).
Because the untimeliness of the motion is dispositive, we do not reach
petitioners’ remaining contentions.
PETITION FOR REVIEW DENIED in part; DISMISSED in part.
2 08-70715