Opinion
Argued and Submitted February 7, 2002 .
This 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NOT FOR PUBLICATION.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)
On Petition for Review of an Order of the Board of Immigration Appeals.
Before TROTT, THOMAS and WARDLAW, Circuit Judges.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as may be provided by Ninth Circuit Rule 36-3.
Claudia de la Cruz Vasquez ("Vasquez" or "Petitioner"), a native and citizen of Mexico, petitions for review of a decision by the Board of Immigration Appeals ("BIA") denying her motion to reopen. We have jurisdiction pursuant to 8 U.S.C. § 1252(b), and we deny the petition.
A "petition for review must be filed not later than 30 days after the date of the final order of removal." 8 U.S.C. § 1252(b)(1). The Immigration Judge ("IJ") found Petitioner removable on November 24, 1997. Petitioner was advised of the date by which any appeal must be filed with the BIA--December 24, 1997. The IJ also warned Vasquez that her failure to depart as ordered would render her ineligible for relief from removal. Vasquez did not file her appeal until December 31, 1997. The BIA, therefore, correctly concluded that Petitioner's appeal was untimely, and dismissed the appeal on June 24, 1998. The November 24 removal order became final. 8 C.F.R. § 3.39 ("Except when certified to the Board, the decision of the Immigration Judge becomes final upon waiver of appeal or upon expiration of the time to appeal if no appeal is taken whichever occurs first.").
Vasquez did not file her motion to reopen alleging ineffective assistance of counsel until July 20, 1998. Generally, motions to reopen "must be filed no later than 90 days after the date on which the final administrative decision was rendered in the proceeding sought to be reopened, or on or before September 30, 1996, whichever is later." 8 C.F.R. § 3.2(c)(2). Because the IJ's final decision was rendered on November 24, 1997, Petitioner was required to file a motion to reopen no later
Page 357.
than February 23, 1998. Therefore, her motion to reopen is untimely.
Petitioner next argues that the IJ should have granted her an extension of time to file an application for cancellation of removal. We lack jurisdiction over this issue because Petitioner failed to file a timely appeal to the BIA and has never raised the issue to the BIA. 8 U.S.C. § 1252(d); Da Cruz v. INS, 4 F.3d 721, 722-23 (9th Cir.1993) (holding failure to file a timely appeal to the BIA is a failure to exhaust administrative remedies and deprives the court of jurisdiction to review the IJ's decision); Rashtabadi v. INS, 23 F.3d 1562, 1567 (9th Cir.1994) ("Failure to raise an issue in an appeal to the BIA constitutes a failure to exhaust remedies with respect to that question and deprives this court of jurisdiction to hear the matter.") (citation omitted).
Finally, although Vasquez based her motion to reopen partly upon ineffective assistance of counsel, as the IJ correctly concluded, Vasquez failed to meet any of the requirements set forth in Matter of Lozada, 19 I. & N. Dec. 637 (BIA 1988). See Castillo-Perez v. INS, 212 F.3d 518, 525 (9th Cir.2000) (denial of a motion to remand or reopen is not an abuse of discretion where the petitioner fails to meet the requirements of Lozada ) (citation omitted). Vasquez has failed to make a prima facie showing that she is eligible for the relief she seeks. INS v. Abudu, 485 U.S. 94, 97, 108 S.Ct. 904, 99 L.Ed.2d 90 (1988).
PETITION DENIED.