Opinion
No. 08-72938.
The panel unanimously finds this case suitable for decision without oral argument. See Fed.R.App.P. 34(a)(2).
Filed December 15, 2008.
Arnold S. Jaffe, Esquire, Law Office of Arnold S. Jaffe, Santa Barbara, CA, for Petitioners.
Jesse Lloyd Busen, Trial, Oil, Emily Anne Radford, U.S. Department of Justice, Washington, DC, Ronald E. Lefevre, Office of the District Counsel Department of Homeland Security, San Francisco, CA, for Respondent.
On Petition for Review of an Order of the Board of Immigration Appeals. Agency Nos. A075-764-738, A075-764-739.
Before GOODWIN, CLIFTON and BEA, Circuit Judges.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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 ruling on a motion to reopen for abuse of discretion. Perez v. Mukasey, 516 F.3d 770, 773 (9th Cir. 2008).
An alien who is subject to a final order of removal is limited to filing one motion to reopen removal proceedings, and that motion must be filed within 90 days of the date of entry of a final order of removal. 8 U.S.C. § 1229a(c)(7)(A), (C)(i); 8 C.F.R. § 1003.2(c)(2). Because petitioners' motion to reopen was filed beyond the 90-day deadline, and petitioners have not contended that any exceptions to this time limit apply, the BIA did not abuse its discretion in denying petitioners' untimely motion to reopen. See id. Nor did the BIA abuse its discretion in concluding that petitioners were not entitled to equitable tolling because petitioners did not allege that prior counsel's ineffective assistance resulted in the untimely filing, and petitioners could not otherwise demonstrate due diligence in raising the claim. See Iturribarria v. INS, 321 F.3d 889, 897-98 (9th Cir. 2003).
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) (stating standard).
All other pending motions are denied as moot. The temporary stay of removal shall continue in effect until issuance of the mandate.