303 F. App'x 493

Martin OVIEDO-DUARTE, Petitioner, v. Michael B. MUKASEY, Attorney General, Respondent.

No. 08-73043.

United States Court of Appeals, Ninth Circuit.

Submitted Dec. 1, 2008.*

Filed Dec. 15, 2008.

Martin Oviedo-Duarte, Perris, CA, pro se.

Remi Adalemo, John C. Cunningham, Esquire, U.S. Department of Justice, Washington, DC, CAC-District Counsel, Esquire, 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.

Before GOODWIN, CLIFTON and BEA, Circuit Judges.

MEMORANDUM **

The motion to proceed in forma pauperis is granted. The Clerk shall amend the docket to reflect this status.

This is a petition for review of the Board of Immigration Appeals’ (“BIA”) order denying petitioner’s 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 petitioner’s motion to reopen was filed beyond the 90-day deadline, and petitioner has not contended that any exceptions to this time limit apply, the BIA did not abuse its discretion in denying petitioner’s untimely motion to reopen. See id. Accordingly, respondent’s motion for summary disposition of this petition for review 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).

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, the government’s motion to dismiss this petition for review 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.

PETITION FOR REVIEW DENIED in part; DISMISSED in part.

Oviedo-Duarte v. Mukasey
303 F. App'x 493

Case Details

Name
Oviedo-Duarte v. Mukasey
Decision Date
Dec 15, 2008
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303 F. App'x 493

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United States

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