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Martinez v. Holder

United States Court of Appeals, Ninth Circuit
Nov 1, 2010
402 F. App'x 247 (9th Cir. 2010)


No. 08-70210.

Submitted October 19, 2010.

The panel unanimously concludes this case is suitable for decision without oral argument. See Fed.R.App.P. 34(a)(2).

Filed November 1, 2010.

Oscar Enrique Martinez, Garden Grove, CA, pro se.

Sung Uk Park, Esquire, Law Offices of Sung U. Park, Los Angeles, CA, for Petitioners.

Lorena Barbara Moyo-Casarrubias, Garden Grove, CA, pro se.

Kiley L. Kane, Esquire, OIL, John Hogan, Senior Litigation Counsel, DOJ-U.S. Department of Justice, Washington, DC, Chief Counsel Ice, Office of the Chief Counsel, Department of Homeland Security, San Francisco, CA, for Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals. Agency Nos. A079-522-687, A079-522-688.

Before: O'SCANNLAIN, LEAVY, and TALLMAN, Circuit Judges.


This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.

Oscar Enrique Martinez; and Lorena Barbara Moyo-Casarrubias, natives and citizens of Mexico, petition for review of the Board of Immigration Appeals' ("BIA") order denying their motion to re-open. Our jurisdiction is governed by 8 U.S.C. § 1252. We review for abuse of discretion the denial of a motion to reopen, and review de novo due process claims. Iturribarria v. INS, 321 F.3d 889, 894 (9th Cir. 2003). 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 as untimely because they did not file the motion within 90 days of the BIA's final order of removal, see 8 C.F.R. § 1003.2(c)(2), and they failed to demonstrate material changed circumstances in Mexico to qualify for the regulatory exception to the time limit, see 8 C.F.R. § 1003.2(c)(3)(ii); see also Toufighi v. Mukasey, 538 F.3d 988, 996-97 (9th Cir. 2008) (evidence must demonstrate prima facie eligibility for relief in order to reopen proceedings based on changed circumstances). Moreover, the denial of petitioners' motion to reopen to apply for asylum, withholding of removal and CAT relief did not violate due process. See Lata v. INS, 204 F.3d 1241, 1246 (9th Cir. 2000) (requiring error for a due process violation).

We lack jurisdiction to review the BIA's decision not to invoke its sua sponte authority to reopen proceedings. See Ekimian v. INS, 303 F.3d 1153, 1159-60 (9th Cir. 2002). Petitioners' contention that the BIA's violated their due process rights by failing to consider evidence of hardship is not supported by the record and does not amount to a colorable due process claim. See Martinez-Rosas v. Gonzales, 424 F.3d 926, 930 (9th Cir. 2005). PETITION FOR REVIEW DENIED in part; DISMISSED in part.

Summaries of

Martinez v. Holder

United States Court of Appeals, Ninth Circuit
Nov 1, 2010
402 F. App'x 247 (9th Cir. 2010)
Case details for

Martinez v. Holder

Case Details

Full title:Oscar Enrique MARTINEZ; Lorena Barbara Moyo-Casarrubias, Petitioners, v…

Court:United States Court of Appeals, Ninth Circuit

Date published: Nov 1, 2010


402 F. App'x 247 (9th Cir. 2010)