Martinez-De Los Santos v. Gonzales

MEMORANDUM ^**

Ricardo Martinez-De Los Santos, a native and citizen of Mexico, petitions for review of the Board of Immigration Appeals’ (“BIA”) order denying his motion to reopen removal proceedings and to remand to the Immigration Judge to apply for adjustment of status. We review for an abuse of discretion, see Lara-Torres v. Ashcroft, 383 F.3d 968, 972 (9th Cir.2004), amended by 404 F.3d 1105 (9th Cir.2005), and we deny in part and dismiss in part the petition for review.

The BIA did not abuse its discretion in denying Santos’ motion to reopen as untimely because it was filed more than ninety days after the BIA’s March 31, 2004 order, see 8 C.F.R. § 1003.2(c)(2), and Santos did not show he was entitled to equitable tolling, see Iturribarria v. INS, 321 F.3d 889, 897 (9th Cir.2003) (explaining that the deadline for filing a motion to reopen can be equitably tolled “when a petitioner is prevented from filing because of deception, fraud, or error, as long as the petitioner acts with due diligence.”).

We lack jurisdiction to review the BIA’s decision not to invoke its sua sponte authority to reopen proceedings under 8 C.F.R. § 1003.2(a). See Ekimian v. INS, 303 F.3d 1153, 1159 (9th Cir.2002).

PETITION FOR REVIEW DENIED in part and DISMISSED in part.

** This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.