Opinion
The panel unanimously finds this case suitable for decision without oral argument. See Fed. R.App. P. 34(a)(2).
NOT FOR PUBLICATION. (See Federal Rule of Appellate Procedure Rule 36-3)
Dominic E. Capeci, Esq., Law Offices of Kaiser & Capeci, San Francisco, CA, for Petitioners.
Ronald E. LeFevre, Chief Counsel, Office of the District Counsel Department of Homeland Security, San Francisco, CA, Jennifer A. Parker, Anthony W. Norwood, Esq., Jennifer Levings, Esq., DOJ-U.S. Department of Justice Civil Div./Office of Immigration Lit., Washington, DC, for Respondent.
On Petition for Review of an Order of the Board of Immigration Appeals. Agency Nos. A75-317-950, A75-317-951.
Before: FERNANDEZ, RYMER and BYBEE, Circuit Judges.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir. R. 36-3.
Felipe Cruz Rangel and his wife, Esther Sanchez-Chavez, natives and citizens of Mexico, petition for review of an order of the Board of Immigration Appeals ("BIA") denying their motion to reopen based on ineffective assistance of counsel. To the extent we have jurisdiction, it is conferred by 8 U.S. C.§ 1252. We review the denial of a motion to reopen for abuse of discretion, see Iturribarria v. INS, 321 F.3d 889, 894 (9th Cir.2003), and we dismiss in part and deny in part the petition for review.
We lack jurisdiction to review the petitioners' contention that the BIA should have exercised its sua sponte power to reopen their case. See Ekimian v. INS, 303 F.3d 1153, 1159 (9th Cir.2002).
The BIA did not abuse its discretion when it denied the petitioners' motion to reopen as untimely where they filed the motion to reopen more than one year after the BIA's final order of removal and did not show they were entitled to equitable tolling. See Iturribarria, 321 F.3d at 897 (equitable tolling applies "when a petitioner is prevented from filing because of deception, fraud or error, as long as the petitioner acts with due diligence in discovering" the misconduct).
PETITION FOR REVIEW DISMISSED in part; DENIED in part