Martinez v. Holder

FILED
NOT FOR PUBLICATION NOV 01 2010

MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS

FOR THE NINTH CIRCUIT

OSCAR ENRIQUE MARTINEZ; No. 08-70210
LORENA BARBARA MOYO-
CASARRUBIAS, Agency Nos. A079-522-687
A079-522-688
Petitioners,

v. MEMORANDUM *

ERIC H. HOLDER, Jr., Attorney General,

Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals

Submitted October 19, 2010 **

Before: O’SCANNLAIN, LEAVY, and TALLMAN, Circuit Judges.

Oscar Enrique Martinez and Lorena Barbara Moyo-Casarrubias, natives and

citizens of Mexico, petition for review of the Board of Immigration Appeals’

(“BIA”) order denying their motion to reopen. Our jurisdiction is governed by 8

*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
U.S.C. § 1252. We review for abuse of discretion the denial of a motion to reopen,

and review de novo due process claims. Iturribarria v. INS, 321 F.3d 889, 894

(9th Cir. 2003). We deny in part and dismiss in part the petition for review.

The BIA did not abuse its discretion in denying petitioners’ motion to

reopen as untimely because they did not file the motion within 90 days of the

BIA’s final order of removal, see 8 C.F.R. § 1003.2(c)(2), and they failed to

demonstrate material changed circumstances in Mexico to qualify for the

regulatory exception to the time limit, see 8 C.F.R. § 1003.2(c)(3)(ii); see also

Toufighi v. Mukasey, 538 F.3d 988, 996-97 (9th Cir. 2008) (evidence must

demonstrate prima facie eligibility for relief in order to reopen proceedings based

on changed circumstances). Moreover, the denial of petitioners’ motion to reopen

to apply for asylum, withholding of removal and CAT relief did not violate due

process. See Lata v. INS, 204 F.3d 1241, 1246 (9th Cir. 2000) (requiring error for

a due process violation).

We lack jurisdiction to review the BIA’s decision not to invoke its sua

sponte authority to reopen proceedings. See Ekimian v. INS, 303 F.3d 1153, 1159-

60 (9th Cir. 2002). Petitioners’ contention that the BIA’s violated their due

process rights by failing to consider evidence of hardship is not supported by the

2 08-70210
record and does not amount to a colorable due process claim. See Martinez-Rosas

v. Gonzales, 424 F.3d 926, 930 (9th Cir. 2005).

PETITION FOR REVIEW DENIED in part; DISMISSED in part.

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