Anguiano Reyes v. Holder

FILED
NOT FOR PUBLICATION MAY 05 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
ELEAZAR ANGUIANO REYES, No. 08-70622
Petitioner, Agency No. A079-540-733
v.
MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
ELEAZAR ANGUIANO REYES, No. 08-75189
Petitioner, Agency No. A079-540-733
v.
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted May 2, 2011
Pasadena, California
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Before: SILVERMAN, TALLMAN, and CLIFTON, Circuit Judges.
Petitioner Eleazar Anguiano Reyes, a native and citizen of Mexico, petitions
for review of two orders of the Board of Immigration Appeals denying motions to
sua sponte reopen and a motion to reconsider a prior order denying a motion to
reopen. We lack jurisdiction to consider the Board’s discretionary decisions not to
sua sponte reopen pursuant to 8 C.F.R. § 1003.2(a). Nevarez Nevarez v. Holder,
572 F.3d 605, 607 (9th Cir. 2009); Ekimian v. INS, 303 F.3d 1153, 1159-60 (9th
Cir. 2002). Therefore, we dismiss the petition for review in 08-75189 and the
claims in 08-70622 asserting that the Board abused its discretion by refusing to sua
sponte reopen cancellation of removal.
We also lack jurisdiction to consider Petitioner’s arguments alleging that the
Board erred in its prior July 19, 2007 order denying the motion to reopen. The
timely petition for review of the reconsideration order in 08-70622 does not
provide jurisdiction to review the July 19, 2007 order. Membreno v. Gonzales, 425
F.3d 1227, 1229 (9th Cir. 2005) (en banc).
The Board did not abuse its discretion by holding that Petitioner’s August
2007 motion for reconsideration was untimely. The motion was stamped as
received and filed on August 23, 2007, and the notice sent to counsel informed
counsel that the motion was received on August 23, 2007. Counsel did not inform
the Board before it ruled that the motion was timely-filed. Petitioner argues that
3
the Federal Express documents filed with the Board after it denied the motion
establish that the Board actually received the motion on August 20, 2007, the last
day to file a timely motion for reconsideration. The record does not compel a
conclusion to that effect or exclude the possibility that the motion for
reconsideration was mistakenly placed in the wrong envelope and sent to this
court, stamped by this court as received on August 21, forwarded from this court to
the Board on August 22, and received by the Board on August 23, as suggested by
one document in the record.
PETITION FOR REVIEW IN 08-70622 DISMISSED IN PART AND
DENIED IN PART. PETITION FOR REVIEW IN 08-75189 DISMISSED.