FILED
NOT FOR PUBLICATION SEP 24 2012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
PABLO RODRIGUEZ DELOYA; IRMA No. 11-71120
RODRIGUEZ,
Agency Nos. A096-344-306
Petitioners, A096-344-307
v.
MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted September 10, 2012 **
Before: WARDLAW, CLIFTON, and N.R. SMITH, Circuit Judges.
Pablo Rodriguez Deloya and Irma Rodriguez, both natives and citizens of
Mexico, petition pro se for review of an order of the Board of Immigration Appeals
(“BIA”) denying their motion to reopen removal proceedings. Our jurisdiction is
*
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).
governed by 8 U.S.C. § 1252. We review for abuse of discretion the BIA’s denial
of a motion to reopen and for substantial evidence the BIA’s factual determinations
made in the course of the decision. Nehad v. Mukasey, 535 F.3d 962, 966-67
(9th Cir. 2008). We deny in part and dismiss in part the petition for review.
The BIA did not abuse its discretion by denying petitioners’ motion to
reopen, where petitioners filed the motion more than five years after issuance of
the BIA’s final order of removal, see 8 U.S.C. § 1229a(c)(7)(C)(i), and petitioners
did not demonstrate that they had received ineffective assistance of counsel during
their appeal to the BIA such as would warrant equitable tolling of the filing
deadline applicable to motions to reopen, see Iturribarria v. INS, 321 F.3d 889,
898 (9th Cir. 2003) (holding that “equitable tolling is available” only if “the
ineffective performance” of an alien’s attorney caused “an essential action in her
client’s case to be undertaken ineffectively, out of time, or not at all”).
We lack jurisdiction to consider petitioners’ contentions that their case
warrants a favorable exercise of prosecutorial discretion, see Vilchiz-Soto v.
Holder, 688 F.3d 642, 644 (9th Cir. 2012) (order), and that the BIA abused its
discretion by declining to reopen their case sua sponte, see Mejia-Hernandez v.
Holder, 633 F.3d 818, 823-24 (9th Cir. 2011).
2 11-71120
To the extent petitioners contend that the BIA failed to provide a reasoned
explanation for its denial of their motion, the contention is unpersuasive because
the BIA identified specific, cogent reasons for its decision. See Movsisian v.
Ashcroft, 395 F.3d 1095, 1098 (9th Cir. 2005).
Finally, because the foregoing determinations are dispositive of the present
petition for review, we decline to consider Rodriguez Deloya’s contention that an
intervening change in the law has rendered him statutorily eligible for cancellation
of removal. See Mendez-Alcaraz v. Gonzales, 464 F.3d 842, 844 (9th Cir. 2006)
(declining to reach nondispositive challenges to a BIA order).
PETITION FOR REVIEW DENIED in part; DISMISSED in part.
3 11-71120