NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT APR 14 2010
MOLLY C. DWYER, CLERK
U .S. C O U R T OF APPE ALS
FELIPE DE JESUS LAMAS FLORES; Nos. 05-70324
EMELIA GARCIA DE LAMAS, 05-74221
Petitioners, Agency Nos. A077-374-934
A077-374-935
v.
ERIC H. HOLDER Jr., Attorney General, MEMORANDUM *
Respondent.
On Petitions for Review of Orders of the
Board of Immigration Appeals
Submitted April 5, 2010 **
Before: RYMER, McKEOWN, and PAEZ, Circuit Judges.
Felipe De Jesus Lamas Flores and Emelia Garcia De Lamas, natives and
citizens of Mexico, petition for review of the Board of Immigration Appeals’
(“BIA”) orders dismissing their appeal from an immigration judge’s (“IJ”) decision
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
denying their applications for cancellation of removal, and denying their motion to
reopen. Our jurisdiction is governed by 8 U.S.C. § 1252. We review de novo
constitutional challenges, Ram v. INS, 243 F.3d 510, 516 (9th Cir. 2001), and
review for abuse of discretion the denial of a motion to reopen, Iturribarria v. INS,
321 F.3d 889, 894 (9th Cir. 2003). We dismiss in part and deny in part the petition
for review in No. 05-70324, and deny the petition for review in No. 05-74221.
We lack jurisdiction to review the BIA’s determination that petitioners failed
to establish the requisite hardship. See Fernandez v. Gonzales, 439 F.3d 592, 596
(9th Cir. 2006). Contrary to petitioners’ contentions, the agency’s interpretation of
the hardship standard falls within the broad range of permissible interpretations of
the statute. See Ramirez-Perez v. Ashcroft, 336 F.3d 1001, 1005-06 (9th Cir.
2003). Petitioners failed to exhaust the contention that the IJ made erroneous
factual findings. See Barron v. Ashcroft, 358 F.3d 674, 677-78 (9th Cir. 2004).
Although petitioners allege that their motion to reopen was received by the
BIA in a timely manner, we may not consider evidence not in the record below.
See 8 U.S.C. § 1252(b)(4)(A). Accordingly, the BIA did not abuse its discretion in
denying petitioners’ motion to reopen as untimely because it was filed one day late.
See 8 U.S.C. § 1229a(c)(7)(C)(i) (motion to reopen must be filed within ninety
2 05-70324/05-74221
days of final order of removal).
In No. 05-70324: PETITION FOR REVIEW DISMISSED in part;
DENIED in part.
In No. 05-74221: PETITION FOR REVIEW DENIED.
3 05-70324/05-74221