Garcia-Martinez v. Holder

FILED NOT FOR PUBLICATION MAR 25 2010 MOLLY C. DWYER, CLERK UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS FOR THE NINTH CIRCUIT ALFREDO GARCIA-MARTINEZ, No. 07-72908 Petitioner, Agency No. A075-687-238 v. MEMORANDUM * ERIC H. HOLDER Jr., Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted March 16, 2010 ** Before: SCHROEDER, PREGERSON, and RAWLINSON, Circuit Judges. Alfredo Garcia-Martinez, a native and citizen of Mexico, petitions for review of the Board of Immigration Appeals’ (“BIA”) order denying his second motion to reopen. Our jurisdiction is governed by 8 U.S.C. § 1252. We review for * 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). JT/Research an abuse of discretion the denial of a motion to reopen, Perez v. Mukasey, 516 F.3d 770, 773 (9th Cir. 2008), and we deny in part and dismiss in part the petition for review. Garcia-Martinez has waived any challenge to the BIA’s dispositive conclusion that his second motion to reopen was untimely and number-barred. See Martinez-Serrano v. INS, 94 F.3d 1256, 1259-60 (9th Cir. 1996) (issues not specifically raised and argued in a party’s opening brief are waived). We lack jurisdiction to review the BIA’s decision not to invoke its sua sponte authority to reopen proceedings under 8 C.F.R. § 1003.2(a). See Ekimian v. INS, 303 F.3d 1153, 1159 (9th Cir. 2002). To the extent that Garcia-Martinez challenges the agency’s previous orders, we lack jurisdiction because this petition for review is not timely as to those orders. See 8 U.S.C. § 1252(b)(1); Singh v. INS, 315 F.3d 1186, 1188 (9th Cir. 2003). Garcia-Martinez’s contention that the BIA abused its discretion by incorrectly construing his motion, in the alternative, as a request for reinstatement of voluntary departure is unavailing. PETITION FOR REVIEW DENIED in part; DISMISSED in part. JT/Research 2 07-72908