FILED
NOT FOR PUBLICATION DEC 30 2009
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
JOSE SANTOS TORRES-GARCIA, Nos. 06-71447
07-72629
Petitioner,
Agency No. A035-214-914
v.
ERIC H. HOLDER Jr., Attorney General, MEMORANDUM *
Respondent.
On Petitions for Review of Orders of the
Board of Immigration Appeals
Submitted December 15, 2009 **
Before: GOODWIN, WALLACE, and FISHER, Circuit Judges.
In these consolidated petitions for review, Jose Santos Torres-Garcia, a
native and citizen of Mexico, petitions for review of the Board of Immigration
Appeals’ (“BIA”) orders dismissing his appeal from an immigration judge’s (“IJ”)
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes that this case is suitable for
decision without oral argument. See Fed. R. App. P. 34(a)(2).
TL/Research
order of removal and denying his subsequent motion to reopen. Our jurisdiction is
governed by 8 U.S.C. § 1252. We review de novo questions of law.
Vasquez-Zavala v. Ashcroft, 324 F.3d 1105, 1107 (9th Cir. 2003). We review for
abuse of discretion the denial of a motion to reopen. Cano-Merida v. INS, 311
F.3d 960, 964 (9th Cir. 2002). In 06-71447, we deny the petition for review. In
07-72629, we deny in part and dismiss in part the petition for review.
Torres-Garcia’s conviction for violating Cal. Health & Safety Code
§ 11379(a) is an aggravated felony under 8 U.S.C. § 1101(a)(43)(B) because the
record of conviction establishes that he was convicted of selling
methamphetamine. Cf. Sandoval-Lua v. Gonzales, 499 F.3d 1121, 1128 (9th Cir.
2007). In addition, Torres-Garcia’s former counsel conceded before the IJ that his
conviction for violating Cal. Health & Safety Code § 11378 is an aggravated
felony under 8 U.S.C. § 1101(a)(43)(B).
The BIA did not abuse its discretion in denying Torres-Garcia’s motion to
reopen as untimely because the motion was filed almost a year after the final
administrative order, see 8 U.S.C. § 1229a(c)(7)(C)(i), and Torres-Garcia did not
show he was entitled to equitable tolling, see Iturribarria v. INS, 321 F.3d 889, 897
(9th Cir. 2003).
TL/Research 2 06-71447
Although we have jurisdiction to review Torres-Garcia’s contention that the
application of § 440(d) of the Antiterrorism and Effective Death Penalty Act
(“AEDPA”) has an impermissibly retroactive effect in his case, Saravia-Paguada
v. Gonzales, 488 F.3d 1122, 1130 (9th Cir. 2007), his contention lacks merit
because he was convicted after AEDPA’s effective date, id. at 1133.
We lack jurisdiction to review the BIA’s decision whether to invoke its sua
sponte authority to reopen proceedings. See Ekimian v. INS, 303 F.3d 1153, 1159
(9th Cir. 2002).
In 06-71447, PETITION FOR REVIEW DENIED.
In 07-71860, PETITION FOR REVIEW DENIED in part; DISMISSED
in part.
TL/Research 3 06-71447