FILED
NOT FOR PUBLICATION JAN 20 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
JOSE ORLANDO MAIRENA, Nos. 09-72785
09-74019
Petitioner,
Agency No. A071-783-311
v.
ERIC H. HOLDER, Jr., Attorney General, MEMORANDUM *
Respondent.
On Petitions for Review of an Order of the
Board of Immigration Appeals and
an Order of the Department of Homeland Security
Submitted January 10, 2011 *
Before: BEEZER, TALLMAN, and CALLAHAN, Circuit Judges.
In these consolidated petitions for review, Jose Orlando Mairena, a native
and citizen of Nicaragua, petitions for review of the Department of Homeland
Security’s order reinstating his 1995 deportation order under 8 U.S.C.
§ 1231(a)(5), and the Board of Immigration Appeals’ order affirming without
*
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).
opinion an immigration judge’s (“IJ”) decision denying his motion to recalendar
removal proceedings. We have jurisdiction under 8 U.S.C. § 1252. We review de
novo questions of law, and review for abuse of discretion the denial of a motion to
reopen. Mohammed v. Gonzales, 400 F.3d 785, 791-92 (9th Cir. 2005). We deny
the petitions for review.
Contrary to Mairena’s contention, reinstatement of his 1995 deportation
order was not precluded by 8 C.F.R. § 241.8(d), because Mairena did not show that
he filed an application for adjustment of status under the Nicaraguan Adjustment
and Central American Relief Act of 1997 (“NACARA”) before April 1, 2000. See
NACARA, Pub. L. No. 105-100, § 202(a)(1)(A), 111 Stat. 2160, 2193 (1997).
The IJ properly construed Mairena’s motion to recalendar as a motion to
reopen, and did not abuse her discretion in denying that motion as untimely where
Mairena filed the motion fourteen years after his in absentia deportation order was
entered, see 8 C.F.R. § 1003.23(b)(4)(iii)(A)(1), and did not assert that he was
entitled to equitable tolling of the filing deadline, see Iturribarria v. INS, 321 F.3d
889, 897 (9th Cir. 2003).
PETITIONS FOR REVIEW DENIED.
2 09-72785, 09-74019