FILED
NOT FOR PUBLICATION NOV 19 2009
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
HECTOR MIGUEL SANDOVAL, No. 06-74449
Petitioner, Agency No. A075-707-510
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 October 7, 2009
Pasadena, California
Before: HALL, W. FLETCHER, and CLIFTON, Circuit Judges.
Hector Miguel Sandoval (“Sandoval”) is a 25-year-old native and citizen of
Mexico who has lived continuously in the United States since February 1990. In
removal proceedings initiated in 2001, Sandoval conceded removability but
applied for cancellation of removal. In October 2003, fifteen days after the Board
of Immigration Appeals (“Board” or “BIA”) upheld an order of the Immigration
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Judge (“IJ”) denying his application for cancellation of removal, Sandoval married
a U.S. citizen, with whom he has a five-year-old U.S. citizen child. Sandoval did
not, however, seek judicial review of the October 2003 decision in which the
Board—acting pursuant to a policy that predated its decision in In re A-M-, 23 I. &
N. Dec. 737 (BIA 2005), and this Court’s decision in Padilla-Padilla v. Gonzales,
463 F.3d 972 (9th Cir. 2006)—issued a “streamlined” affirmance of the IJ’s
decision, but reduced the period of voluntary departure ordered by the IJ from sixty
to thirty days.
This Court previously upheld an October 2004 decision of the Board
denying Sandoval’s first motion to reopen as untimely, and rejecting his plea for
equitable tolling based on a claim of ineffective assistance by a “notario” who had
failed timely to seek reopening and an adjustment of status based on his marriage
to a U.S. citizen. See Sandoval v. Gonzales, 166 F.App’x 993 (9th Cir. 2006)
(Sandoval I). The Board found, and this Court agreed, that Sandoval had not
exercised due diligence in pursuing his ineffective assistance claim because he did
not bring his first motion to reopen until more than five months after retaining new
counsel. Id. at 994.
In the instant matter, Sandoval petitions for review of an August 14, 2006
decision in which the Board denied his second motion to reopen, finding that it was
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untimely and number-barred. We have jurisdiction to review the Board’s decision
in this respect. 8 U.S.C. § 1252. We review the denial of a motion to reopen under
the deferential abuse of discretion standard, and will reverse the denial of a motion
to reopen only if it was arbitrary, irrational, or contrary to law. See Perez v.
Mukasey, 516 F.3d 770, 773 (9th Cir. 2008).
Sandoval filed his second motion to reopen more than a year after the
Board’s October 29, 2004 decision, the final administrative decision rendered in
the proceedings sought to be reopened. This was well beyond the 90-day period
for reopening prescribed by statute and regulation. 8 U.S.C. § 1229a(c)(7)(C); 8
C.F.R. § 1003.2(c)(2). Sandoval’s motion to reopen also exceeded the numerical
limitations on filing such motions. 8 U.S.C. § 1229a(c)(7)(A); 8 C.F.R. §
1003.2(c)(2); see also Malty v. Ashcroft, 381 F.3d 942, 945 (9th Cir. 2004). Thus,
the Board did not abuse its discretion when it denied Sandoval’s second motion to
reopen for failure to satisfy statutory and regulatory requirements. Nor did the
Board abuse its discretion, or otherwise err, in adopting its previous decision
rejecting Sandoval’s plea for equitable tolling based on ineffective assistance of
counsel—a ruling that was affirmed by this Court in Sandoval I, 166 F.App’x at
994. See also Iturribarria v. INS, 321 F.3d 889, 897-98 (9th Cir. 2003).
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Sandoval further contends, however, that the Board erred and abused its
discretion when it denied his request for reopening under its sua sponte authority,
and his request to reinstate his original 60-day period for voluntary departure. This
latter argument is essentially a claim that intervening case law, including In re A-
M-, 23 I. & N. Dec. 737, and Padilla-Padilla, 463 F.3d 972, effected a
“fundamental” change in the law presenting an “exceptional situation” warranting
an exercise of the Board’s sua sponte authority to reopen. See In re G-D-, 22 I. &
N. Dec. 1132, 1134-35 (BIA 1999); In re J-J-, 21 I. & N. Dec. 976, 984 (BIA
1997). Before we can reach the merits of these claims, we must determine whether
we have jurisdiction to review the BIA’s decision in these respects.
We do, of course, have jurisdiction to determine our own jurisdiction, and an
obligation to do so sua sponte. Diaz-Covarrubias v. Mukasey, 551 F.3d 1114,
1117-18 (9th Cir. 2009). But we do not have jurisdiction to review Sandoval’s
claim that the BIA abused its discretion by declining to exercise its authority to
reopen his removal proceedings sua sponte. Ekimian v. INS, 303 F.3d 1153, 1157-
59 (9th Cir. 2002) (the courts of appeals are without jurisdiction to evaluate an
alien’s claim that the BIA should have reopened his case sua sponte). Indeed, in
Ekimian, we specifically rejected an argument that In re J-J-, and the Board’s other
“exceptional situation” cases, provide “a meaningful judicial standard” against
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which to evaluate whether the BIA abused its discretion by declining to exercise its
authority under 8 C.F.R. § 1003.2(a) to reopen sua sponte. 303 F.3d at 1158.
We also lack jurisdiction to decide whether the Board properly reduced
Sandoval’s voluntary departure period in the first place. Sandoval did not timely
file a petition for review of the Board’s October 8, 2003 decision reducing his
period for voluntary departure. We are without jurisdiction to review claims that
were not raised in accordance with the statutory filing requirements for petitions
for review of agency decisions. 8 U.S.C. § 1252(b)(1); Membreno v. Gonzales,
425 F.3d 1227, 1229 (9th Cir. 2005) (30-day deadline in 8 U.S.C. § 1252(b)(1) is
mandatory and jurisdictional, and cannot be tolled); see also Minasyan v. Mukasey,
553 F.3d 1224, 1229 (9th Cir. 2009) (where alien fails to file petition for review
within 30 days of final agency order denying relief from removal, court of appeals
lacks jurisdiction over those claims).
Accordingly, to the extent Sandoval seeks review of the Board’s decision to
deny his second motion to reopen as untimely and number-barred, the petition is
DENIED. To the extent Sandoval asks this Court to review the Board’s denial of
his requests to exercise its authority to reopen his case sua sponte and reinstate his
original period of voluntary departure, the petition is DISMISSED.
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