Magallon-Cardenas v. Holder

FILED
NOT FOR PUBLICATION FEB 26 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
MARIA ISABEL MAGALLON- No. 06-73074
CARDENAS, aka:Mary Magallon,
Agency No. A070-707-441
Petitioner,
v. MEMORANDUM *
ERIC H. HOLDER Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted February 16, 2010 **
Before: FERNANDEZ, GOULD, and M. SMITH, Circuit Judges.
Maria Isabel Magallon-Cardenas, a native and citizen of Mexico, petitions
for review of the Board of Immigration Appeals’ (“BIA”) order denying her
motion to reopen proceedings. Our jurisdiction is governed by 8 U.S.C. § 1252.
*
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).
AP/Research
We review for abuse of discretion the denial of a motion to reopen. Mohammed v.
Gonzales, 400 F.3d 785, 791 (9th Cir. 2005). We deny in part and dismiss in part
the petition for review.
The BIA did not abuse its discretion in denying Magallon-Cardenas’ motion
to reopen as untimely where it was filed more than two years after the BIA’s April
23, 2003, order. See 8 C.F.R. § 1003.2(c)(2).
We lack jurisdiction to address Magallon-Cardenas’ contention that
intervening case law, Altamirano v. Gonzales, 427 F.3d 586 (9th Cir. 2005),
effected a fundamental change in the law warranting an exercise of the BIA’s sua
sponte authority to reopen. See Ekimian v. INS, 303 F.3d 1153, 1159 (9th Cir.
2002) (this court lacks jurisdiction to review the BIA’s decision not to invoke its
sua sponte authority to reopen proceedings); see also Matter of G-D-, 22 I. & N.
Dec. 1132, 1134-35 (BIA 1999).
To the extent Magallon-Cardenas challenges the BIA’s April 23, 2003,
order, we lack jurisdiction because this petition for review is not timely as to that
order. See 8 U.S.C. § 1252(b)(1); Singh v. INS, 315 F.3d 1186, 1188 (9th Cir.
2003). PETITION FOR REVIEW DENIED in part; DISMISSED in
part.
AP/Research 2 06-73074
AP/Research 3 06-73074