Opinion
No. 06-73232.
Argued and Submitted October 5, 2010.
Filed October 8, 2010.
Teresa Salazar-Cosmos, Immigration Practice Group A Professional Corporation, San Francisco, CA, for Petitioner.
Chief Counsel Ice, Office of the Chief Counsel, Department of Homeland Security, San Francisco, CA, Yedidya Cohen, OIL, David V. Bernal, Assistant Director, U.S. Department of Justice, Washington, DC, for Respondent.
On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A072-698-046.
Before: REINHARDT, BERZON and CALLAHAN, Circuit Judges.
This disposition is not appropriate for publication and is not precedent except as provided by9thCir. R. 36-3.
Petitioner Jingesh Mehta ("Petitioner") petitions for review of a May 26, 2006, order issued by the Board of Immigration Appeals ("BIA"), denying his motion to reconsider the BIA's March 1, 2006 denial of his motion to reopen on the basis that there were no grounds for reconsideration. This court has jurisdiction pursuant to 8 U.S.C. § 1252, as amended by the REAL ID Act, and we deny the petition.
The parties are familiar with the facts and we repeat them here only as necessary to explain our decision.
The time limit for filing a petition for review is "mandatory and jurisdictional" and "not subject to equitable tolling." Stone v. INS, 514 U.S. 386, 405, 115 S.Ct. 1537, 131 L.Ed.2d 465 (1995); see also Martinez-Serrano v. INS, 94 F.3d 1256, 1258 (9th Cir. 1996). The filing of a motion to reopen or reconsider does not toll the statutory time in which to appeal the underlying final order. See Stone, 514 U.S. at 405-06, 115 S.Ct. 1537; Martinez-Serrano, 94 F.3d at 1258. Because Petitioner did not file a petition for review of the BIA's May 24, 2006, final order denying his motion to reopen, we do not have jurisdiction to review anything other than the BIA's denial of reconsideration.
In a motion to reconsider, unlike a motion to reopen, the petitioner must identify errors that the BIA made in its underlying decision. Matter of Cerna, 20 I. N. Dec. 399, 402-03 (BIA 1991); Socop-Gonzalez v. INS, 272 F.3d 1176, 1180-81 (9th Cir. 2001) (en banc). These alleged errors are reviewed for an abuse of discretion and will be reversed only if the BIA acted arbitrarily, irrationally, or contrary to law. Mohammed v. Gonzales, 400 F.3d 785, 791 (9th Cir. 2005).
Here, the only alleged errors that Petitioner raised in his motion for reconsideration were that the BIA had incorrectly determined that Jingesh Mehta was his true identity and that his case should be consolidated with his other proceeding, in which he was using the name Jignesh Jariwala. In its reconsideration order, the BIA found no errors in its prior determinations and held that there were no grounds for reconsideration. Because we do not have jurisdiction to review the merits of Petitioner's underlying claims, and because we find that the BIA did not abuse its discretion or otherwise act arbitrarily, irrationally, or contrary to law when it denied petitioner's motion for reconsideration, we deny the petition.