Martinez-Garcia v. Holder

FILED
NOT FOR PUBLICATION DEC 23 2009
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
JONATHAN E. MARTINEZ-GARCIA, No. 05-75457
Petitioner, Agency No. A074-322-464
v.
MEMORANDUM *
ERIC H. HOLDER JR., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted December 9, 2009
San Francisco, California
Before: COWEN, ** GRABER, and BYBEE, Circuit Judges.
Petitioner Jonathan E. Martinez-Garcia sought relief from removal before an
immigration judge. The immigration judge denied relief other than permission to
depart voluntarily; on appeal, the Board of Immigration Appeals ("BIA") affirmed
without opinion. This court denied Petitioner’s timely petition for review.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Robert E. Cowen, Senior United States Circuit Judge
for the Third Circuit, sitting by designation.
Martinez-Garcia v. Ashcroft, 108 F. App’x 463 (9th Cir. 2004) (unpublished
decision).
Petitioner failed to appear for his scheduled departure. Instead, he applied
for relief under the Nicaraguan Adjustment and Central American Relief Act
("NACARA"), Pub. L. No. 105-100, 111 Stat. 2160 (1997); he filed a motion to
reopen with the BIA; and he filed a habeas corpus petition, pursuant to 28 U.S.C.
§ 2241, in federal district court. Petitioner sought a stay of removal until the BIA
could resolve the pending NACARA application and motion to reopen. After
enactment of the REAL ID Act of 2005, Pub. L. No. 109-13, 119 Stat. 231, the
district court transferred the habeas case to this court pursuant to section 106(c) of
that Act.
Thereafter, the BIA denied the motion to reopen as untimely because it was
filed two years after issuance of the final order of removal, rather than within
ninety days; and Citizenship and Immigration Services denied the NACARA
application because Petitioner was subject to an outstanding final order of removal.
We, therefore, must dismiss the petition as moot.
Petition DISMISSED.
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