Shaw v. Gonzales

MEMORANDUM ** Dean Ali Shaw, a native and citizen of Afghanistan, petitions pro se for review of the Board of Immigration Appeals’ (“BIA”) order denying his motion to reopen removal proceedings. We have jurisdiction pursuant to 8 U.S.C. § 1252 . We review for abuse of discretion the denial of a motion to reopen, Reyes v. Ashcroft, 358 F. 3d 592, 595 (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 Shaw’s motion to reopen because he did not file the motion within ninety days of the BIA’s order dismissing his appeal, see 8 C.F.R. § 1003.2 (c)(2), and did not comply fully with the requirements set forth in Matter of Lozada, 19 I. & N. Dec. 637, 639 , 1988 WL 235454 (BIA 1988), see Reyes, 358 F.3d at 597-99 (discussing the importance of an affidavit and an opportunity for former counsel to respond to allegations where ineffective assistance was not plain on the face of the record). To the extent Shaw seeks review of the BIA’s October 22, 2002 decision, we lack jurisdiction because Shaw did not file a *675 timely petition seeking review of that decision. See Martinez-Serrano v. INS, 94 F.3d 1256, 1258 (9th Cir.1996) (filing a motion to reopen does not toll the statutory time to appeal the underlying final order). We grant respondent’s motion to strike the extra-record exhibits submitted by Shaw with his opening brief. See Fisher v. INS, 79 F.3d 955, 963-64 (9th Cir.1996) (en banc). PETITION FOR REVIEW DENIED in part; DISMISSED in part. This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir. R. 36-3.