Cruz v. Mukasey

MEMORANDUM ^**

This is a petition for review of the Board of Immigration Appeals’ (“BIA”) order denying petitioners Jesus Gonzalez-Cruz and Maria de Lourdes Gonzalez’s third motion to reopen their cancellation of removal proceedings.

The BIA’s denial of a motion to reopen is reviewed for abuse of discretion. See Cano-Merida v. INS, 311 F.3d 960, 964 (9th Cir.2002). The regulations state that a petitioner may file only one motion to reopen removal proceedings, and that motion must be filed not later than ninety days after the date on which the final order of removal was entered. See 8 C.F.R. § 1003.2(c).

There is substantial evidence to support the BIA’s decision denying petitioners’ motion to reopen. A review of the administrative record demonstrates that this is petitioners’ third motion to reopen and that it was filed on September 26, 2007, more than ninety days after May 2, 2006, the date on which petitioners’ final orders of removal were entered. To the extent petitioners seek protection under the Convention Against Torture (“CAT”), the BIA did not abuse its discretion in denying the motion to reopen where petitioners did not demonstrate prima facie eligibility for such relief. See Mendez-Gutierrez v. Ashcroft, 840 F.3d 865, 869-70 (9th Cir.2003) (“pri-ma facie eligibility for the relief sought is a prerequisite for the granting of a motion to reopen”); 8 C.F.R. § 1208.16(c)(2) (applicant for CAT relief must prove “it is more likely than not that he or she would be tortured if removed to the proposed country of removal”). Accordingly, respondent’s unopposed motion for summary disposition is granted because the questions raised by this petition for review are so insubstantial as not to require further argument. See United States v. Hooton, 693 F.2d 857, 858 (9th Cir.1982) (per curiam).

The motion for stay of voluntary departure, filed after the departure period had expired, is denied. See Garcia v. Ashcroft, 368 F.3d 1157 (9th Cir.2004).

All other pending motions are denied as moot. The temporary stay of removal confirmed by Ninth Circuit General Order 6.4(c) shall continue in effect until issuance of the mandate.

PETITION FOR REVIEW DENIED.

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