Susano-Garcia v. Holder , 383 F. App'x 617 ( 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NOT FOR PUBLICATION JUN 10 2010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
TEODORO SUSANO-GARCIA, No. 08-70547
Petitioner, Agency No. A078-000-217
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.
Teodoro Susano-Garcia, a native and citizen of Mexico, petitions pro se for
review of the Board of Immigration Appeals’ (“BIA”) order denying his motion to
reopen removal proceedings. We have jurisdiction under 8 U.S.C. § 1252. We
review for abuse of discretion the BIA’s denial of a motion to reopen, Iturribarria
*
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).
v. INS, 321 F.3d 889, 894 (9th Cir. 2003), and we deny in part and dismiss in part
the petition for review.
The BIA did not abuse its discretion in denying Susano-Garcia’s motion to
reopen as time- and number-barred because it was his second motion to reopen and
it was filed over two years after the BIA’s final order of removal, see 8 U.S.C.
§ 1229a(c)(7)(A)-(C) (motion to reopen normally limited to one, and must be filed
within 90 days of final administrative order of removal), and Susano-Garcia did
not show he was entitled to equitable tolling, see Iturribarria, 321 F.3d at 897 (due
diligence required for equitable tolling).
Susano-Garcia’s contention that the BIA did not sufficiently address his
hardship evidence fails because the BIA’s time- and number-bar determination was
dispositive. See 8 U.S.C. § 1229a(c)(7).
We lack jurisdiction to review the BIA’s sua sponte determination. See
Ekimian v. INS, 303 F.3d 1153, 1159 (9th Cir. 2002).
PETITION FOR REVIEW DENIED in part; DISMISSED in part.
2 08-70547