De La Cruz v. Mukasey

MEMORANDUM ^**

This is a petition for review of the Board of Immigration Appeals’ (“BIA”) order denying petitioners’ motion to reopen removal proceedings.

We review the BIA’s denial of a motion to reopen for abuse of discretion. See Rodriguez-Lariz v. INS, 282 F.3d 1218, 1222 (9th Cir.2002). The regulations provide that a motion to reopen must be filed within 90 days of the final administrative order. See 8 C.F.R. § 1003.2(c)(2). The BIA did not abuse its discretion in denying petitioners’ motion to reopen as untimely because the motion to reopen was filed more than six months after the final administrative order and did not meet a regulatory exception to the 90-day filing requirement. Accordingly, respondent’s motion for summary disposition is granted.

Further, we lack jurisdiction to review the BIA’s decision declining to exercise its sua sponte authority to reopen proceedings. See Ekimian v. INS, 303 F.3d 1153, 1159 (9th Cir.2002).

The motion to proceed in forma pauperis is granted. The motion for a stay of removal pending review is 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 in part; DISMISSED in part.

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