FILED
NOT FOR PUBLICATION MAY 09 2011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 ANGEL RODRIGUEZ- No. 09-72042
ALVARADO,
Agency No. A072-524-486
Petitioner,
v. MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted May 2, 2011
Pasadena, California
Before: SILVERMAN, TALLMAN, and CLIFTON, Circuit Judges.
Jesus Rodriguez-Alvarado, a native and citizen of Peru, petitions for review
of a decision of the Board of Immigration Appeals denying his motion to reopen as
untimely. We deny the petition in part and dismiss it in part.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
The 90-day deadline for motions to reopen in 8 C.F.R. § 3.2(c)(2) was not
applied retroactively. A statute or regulation has a retroactive effect when it
“creates a new obligation, imposes a new duty, or attaches a new disability, in
respect to transactions or considerations already past.” Landgraf v. USI Film
Products, 511 U.S. 244, 269 (1994) (citation omitted). At the time 8 C.F.R. §
3.2(c)(2) became effective, Rodriguez had not yet filed a motion to reopen. He
could have met the deadline by filing a motion to reopen by September 30, 1996 –
three months from the regulation’s effective date and over five months after his
deportation order. See Matter of Monges-Garcia, 25 I. & N. Dec. 246, 249-250
(BIA 2010).
The court lacks jurisdiction to review petitioner’s due process arguments
because he did not exhaust them before the BIA. 8 U.S.C. § 1252(d)(1); Barron v.
Ashcroft, 358 F.3d 674, 678 (9th Cir. 2004).
The request for judicial notice is denied because the court may not take
notice of materials outside of the record. 8 U.S.C. § 1252 (b)(4)(A); Fisher v. INS,
79 F.3d 955, 964 (9th Cir. 1996) (en banc).
Petitioner’s motion for stay of removal is denied.
PETITION DENIED IN PART AND DISMISSED IN PART.
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