Mendoza Sandoval v. Gonzales , 212 F. App'x 628 ( 2006 )

MEMORANDUM ^**

Leonardo Mendoza Sandoval and his wife, Elizabeth De Mendoza Perez, natives and citizens of Mexico, petition pro se for review of the Board of Immigration Appeals’ (“BIA”) order denying their motion to reconsider the BIA’s decision upholding the Immigration Judge’s (“IJ”) order denying their application for cancellation of removal for failure to establish the requisite ten years of continuous physical presence. We review for abuse of discretion the denial of a motion to reconsider. See Oh v. Gonzales, 406 F.3d 611, 612 (9th Cir.2005). We deny the petition for review.

The BIA did not abuse its discretion by denying the petitioners’ motion to reconsider as untimely. Id. Petitioners filed their motion to reconsider on June 28, 2004, over a year after the BIA issued its final decision on the merits on May 20, 2003. See 8 C.F.R. § 1003.2(b)(2) (motions to reconsider must be filed within 30 days of the BIA’s decision).

Petitioners’ opening brief argues the merits of their application for cancellation of removal. This court lacks jurisdiction to consider their argument because petitioners did not seek review of the BIA’s underlying decision. See Stone v. INS, 514 U.S. 386, 405, 115 S.Ct. 1537, 131 L.Ed.2d 465 (1995) (the filing of a motion to reopen does not toll the underlying deportation order for purposes of review).

PETITION FOR REVIEW DENIED.

** This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir. R. 36-3.