Gilmar Torres v. Eric Holder, Jr.

FILED
NOT FOR PUBLICATION APR 24 2012

MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS

FOR THE NINTH CIRCUIT

GILMAR HUMBERTO TORRES; LUZ No. 09-73067
ALEYDA GARCIA,
Agency Nos. A079-535-914
Petitioners, A079-535-915

v.
MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,

Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals

Submitted April 17, 2012 **

Before: LEAVY, PAEZ, and BEA, Circuit Judges.

Gilmar Humberto Torres and Luz Aleyda Garcia, natives and citizens of

Colombia, petition pro se for review of the Board of Immigration Appeals’

(“BIA”) order denying their motion to reopen. Our jurisdiction is governed by 8

*
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).
U.S.C. § 1252. We review for an abuse of discretion, Malty v. Ashcroft, 381 F.3d

942, 945 (9th Cir. 2004), and we deny in part and dismiss in part the petition for

review.

The BIA did not abuse its discretion in denying petitioners’ motion to

reopen to apply for asylum and withholding of removal as untimely because the

motion was filed over five years after the BIA’s final order, see 8 C.F.R. §

1003.2(c)(2), and petitioners failed to present material evidence of changed

circumstances in Colombia to qualify for the regulatory exception to the time

limitation for filing motions to reopen, see 8 C.F.R. § 1003.2(c)(3)(ii); see also

Najmabadi v. Holder, 597 F.3d 983, 991 (9th Cir. 2010).

The BIA also did not abuse its discretion in denying petitioners’ motion to

reopen to apply for protection under the Convention Against Torture because it

considered the evidence submitted and acted within its broad discretion in

determining petitioners did not demonstrate prima facie eligibility for relief. See

INS v. Abudu, 485 U.S. 94, 104 (1988) (the BIA may deny a motion to reopen for

failure to establish a prima facie case for the underlying relief sought).

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 Finally, we lack jurisdiction to review the BIA’s decision not to exercise its

sua sponte power to reopen proceedings. See Mejia-Hernandez v. Holder, 633

F.3d 818, 823-24 (9th Cir. 2011).

PETITION FOR REVIEW DENIED in part; DISMISSED in part.

3 09-73067