Astorga Salazar v. Holder , 360 F. App'x 931 ( 2010 )

FILED
NOT FOR PUBLICATION JAN 08 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
RAMON ASTORGA SALAZAR; No. 07-72083
MARIA DEL CARMEN ASTORGA,
Agency Nos. A075-753-504
Petitioners, A075-753-505
v.
MEMORANDUM *
ERIC H. HOLDER Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted December 15, 2009 **
Before: GOODWIN, WALLACE, and FISHER, Circuit Judges.
Ramon Astorga Salazar and his wife, Maria Del Carmen Astorga, natives
and citizens of Mexico, petition pro se for review of an order of the Board of
Immigration Appeals (“BIA”) denying their motion to reopen removal
*
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).
AR/Research
proceedings. Our jurisdiction is governed by 8 U.S.C. § 1252. We review for
abuse of discretion the denial of a motion to reopen, Ordonez v. INS, 345 F.3d 777,
782 (9th Cir. 2003), and we dismiss in part and deny in part the petition for review.
We lack jurisdiction to review petitioners’ contention that they demonstrated
eligibility for relief under the Convention Against Torture because they failed to
raise that issue before the BIA and thereby failed to exhaust their administrative
remedies. See Barron v. Ashcroft, 358 F.3d 674, 678 (9th Cir. 2004) (the court
lacks jurisdiction to review contentions not raised before the agency).
The BIA did not abuse its discretion in denying petitioners’ motion to
reopen as untimely because it was filed over eleven months after the BIA’s final
order of removal, see 8 U.S.C. § 1229a(c)(7)(C)(i) (motion to reopen must be filed
within ninety days of final order of removal), and petitioners did not show that any
regulatory exception to the time limitation applied, see 8 C.F.R. § 1003.2(c)(3), or
that they were entitled to equitable tolling, see Iturribarria v. INS, 321 F.3d 889,
897 (9th Cir. 2003) (deadline for filing motion to reopen can be equitably tolled
“when a petitioner is prevented from filing because of deception, fraud, or error, as
long as the petitioner acts with due diligence”).
PETITION FOR REVIEW DISMISSED in part; DENIED in part.
AR/Research 2 07-72083