Opinion
No. 08-72798.
The panel unanimously finds this case suitable for decision without oral argument. See Fed.R.App.P. 34(a)(2).
Filed December 16, 2008.
Cornelio Arcos-Memije, Corona, CA, pro se.
Jesse Lloyd Busen, OIL, Emily Anne Radford, DOJ — U.S. Department of Justice, Washington, DC, CAC-District Counsel, Office of the District Counsel, Department of Homeland Security, Los Angeles, CA, 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. A096-059-340, A096-059-341.
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' second motion to reopen removal proceedings.
We review the BIA's ruling on a motion to reopen for abuse of discretion. See Perez v. Mukasey, 516 F.3d 770, 773 (9th Cir. 2008).
Respondent's motion to dismiss for lack of jurisdiction is construed as a motion for summary disposition in part and a motion to dismiss in part. So construed, respondent's motion for summary disposition in part 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).
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' second motion to reopen was filed beyond the 90-day deadline, and petitioners have failed to demonstrate that an exception to this time limit applies, the BIA did not abuse its discretion in denying petitioners' motion to reopen. See id. Accordingly, the petition for review is denied in part.
In addition, this court lacks jurisdiction to review the BIA's decision not to reopen proceedings sua sponte. See Ekimian v. INS, 303 F.3d 1153 (9th Cir. 2002). Accordingly, respondent's motion to dismiss in part is granted.
All other pending motions are denied as moot. The temporary stay of removal shall continue in effect until issuance of the mandate.