FILED
UNITED STATES COURT OF APPEALS MAR 23 2011
MOLLY C. DWYER, CLERK
FOR THE NINTH CIRCUIT U .S. C O U R T OF APPE ALS
JESUS CASTENEDA-RIVERA, No. 07-73379
Petitioner, Agency No. A077-125-430
v.
ORDER
ERIC H. HOLDER JR., Attorney General
Respondent.
Before: CANBY, THOMAS, and W. FLETCHER, Circuit Judges.
The government’s petition for panel rehearing is granted.
The memorandum disposition filed on June 8, 2010, is withdrawn. A new
memorandum disposition will be filed concurrently with this order.
Any petition for rehearing of the new memorandum disposition must be filed
within 45 days.
FILED
NOT FOR PUBLICATION MAR 23 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
JESUS CASTENEDA-RIVERA, No. 07-73379
Petitioner, Agency No. A077-125-430
v.
MEMORANDUM *
ERIC H. HOLDER Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted May 25, 2010 **
Before: CANBY, THOMAS, and W. FLETCHER, Circuit Judges.
Jesus Casteneda-Rivera, a native and citizen of Mexico, petitions for review
of the Board of Immigration Appeals’ (“BIA”) order denying his motion to reopen
*
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).
proceedings to apply for adjustment of status. Our jurisdiction is governed by 8
U.S.C. § 1252. We deny in part and dismiss in part the petition for review.
The BIA did not abuse its discretion in denying Casteneda-Rivera’s motion
as untimely where the motion was filed more than five months after the BIA’s final
administrative order. See 8 C.F.R. § 1003.2(c)(2); see Lara-Torres v. Ashcroft,
383 F.3d 968, 972 (9th Cir. 2004) (holding that BIA denials of motions to reopen
are reviewed for abuse of discretion), amended by 404 F.3d 1105 (9th Cir. 2005).
We lack jurisdiction to review Casteneda-Rivera’s equitable tolling
contention because he failed to exhaust this claim before the agency. See Barron v.
Ashcroft, 358 F.3d 674, 678 (9th Cir. 2004).
We agree with the determination in this court’s March 13, 2008, order that at
the time that Casteneda-Rivera filed his motion to stay his voluntary departure
period, his voluntary departure period had expired. Casteneda-Rivera’s motion to
reopen did not stay his period of voluntary departure because the motion was
untimely. See Azarte v. Ashcroft, 394 F.3d 1278, 1280 (9th Cir. 2005) (concluding
that the BIA abuses its discretion “when it dismisses a motion to reopen, timely
filed by an alien during his voluntary period, because the alien subsequently fails
to depart prior to the end of the period while awaiting the BIA’s decision)
(emphasis added); see also Barroso v. Gonzales, 429 F.3d 1195, 1205 (9th Cir.
2 07-73379
2005) (“the timely filing of a motion to reopen. . . automatically tolls the voluntary
departure period”) (emphasis added).
PETITION FOR REVIEW DENIED in part; DISMISSED in part.
3 07-73379