Jose Rios v. Eric H. Holder Jr. ( 2010 )

FILED
NOT FOR PUBLICATION DEC 13 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
JOSE LUIS RIOS and MARIA ELENA No. 09-70172
RIOS,
Agency Nos. A072-535-604
Petitioners, A072-535-605
v.
MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted December 6, 2010 **
Before: GOODWIN, RYMER, and GRABER, Circuit Judges.
Jose Luis Rios and Maria Elena Rios, husband and wife and natives and
citizens of Peru, petition pro se for review of the Board of Immigration Appeals’
(“BIA”) order denying their motion to reopen removal proceedings. Our
jurisdiction is governed by 8 U.S.C. § 1252. We review for abuse of discretion the
*
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).
denial of a motion to reopen. Toufighi v. Mukasey, 538 F. 3d 988, 992 (9th Cir.
2008). We deny in part and dismiss in part the petition for review.
The BIA did not abuse its discretion in denying petitioners’ motion to
reopen as untimely because it was filed more than ten years 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).
We lack jurisdiction to review petitioners’ contention that they did not
receive the BIA’s 1997 decision because petitioners failed to exhaust this issue
before the BIA. See Barron v. Ashcroft, 358 F.3d 674, 678 (9th Cir. 2004).
We also lack jurisdiction to review the BIA’s decision not to invoke its sua
sponte authority to reopen proceeding, see Ekimian v. INS, 303 F.3d 1153, 1159
(9th Cir. 2002)1, and its underlying order dismissing petitioners’ appeal from the
immigration judge’s decision denying suspension of deportation, Singh v. INS, 315
F.3d 1186, 1188 (9th Cir. 2003).
PETITION FOR REVIEW DENIED in part; DISMISSED in part.
1
To the extent that this court might have jurisdiction over the denial of sua
sponte reopening, see Kucana v. Holder, 130 S. Ct. 827 (2010), we find the agency
did not abuse its discretion in denying such relief.
2 09-70172
3 09-70172