Carrion-Padilla v. Holder

FILED
NOT FOR PUBLICATION APR 09 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
HELEODORO CARRION-PADILLA, Nos. 05-75735
06-74997
Petitioner,
Agency No. A034-013-240
v.
ERIC H. HOLDER JR., Attorney General, MEMORANDUM *
Respondent.
On Petitions for Review of Orders of the
Board of Immigration Appeals
Submitted April 5, 2010 **
Pasadena, California
Before: FERNANDEZ, SILVERMAN, and GRABER, Circuit Judges.
Petitioner Heleodoro Carrion-Padilla appeals the Board of Immigration
Appeals’ ("BIA") denial of suspension of deportation and denial of his motion to
reopen the case. We dismiss in part and deny in part.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. Fed. R. App. P. 34(a)(2).
We lack jurisdiction to review a decision by the BIA denying an alien’s
application for suspension of deportation in the exercise of discretion. 8 U.S.C.
§ 1252(a)(2)(B)(i); see also Mendez-Castro v. Mukasey, 552 F.3d 975, 978 (9th
Cir. 2009). We also lack jurisdiction to review the BIA’s decision not to act sua
sponte to reopen Petitioner’s case. See Ekimian v. INS, 303 F.3d 1153, 1159 (9th
Cir. 2002) (holding that this court has no jurisdiction to review the BIA’s decision
not to invoke its sua sponte authority because that decision is committed to the
BIA’s unfettered discretion).
However, we retain jurisdiction over constitutional claims. Martinez-Rosas
v. Gonzales, 424 F.3d 926, 930 (9th Cir. 2005). Here, Petitioner fails to present a
colorable constitutional violation that would give this court jurisdiction to review
the denial of suspension of deportation. See id. (holding that a "petitioner must
allege at least a colorable constitutional violation").
The BIA did not abuse its discretion in determining that equitable tolling
does not apply to Petitioner’s case. Petitioner failed to demonstrate that new,
material evidence came to light, 8 C.F.R. § 1003.2(c)(1); that fraud, deceit, error,
or ineffective assistance of counsel prevented him from filing a timely motion,
Lopez v. INS, 184 F.3d 1097, 1100 (9th Cir. 1999); or that a government official
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gave Petitioner incorrect advice during the pendency of his petition, Socop-
Gonzalez v. INS, 272 F.3d 1176, 1187-89 (9th Cir. 2001) (en banc).
DENIED in part; DISMISSED in part.
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