Vidana De Garcia v. Gonzales

MEMORANDUM ** This is a petition for review from the denial of petitioner’s motion to reopen removal proceedings. *636 The Board of Immigration Appeals (“BIA”) did not abuse its discretion in denying as untimely petitioner’s motion to reopen filed more than 39 months after the BIA’s final order of removal. See 8 C.F.R. § 1003.2 (c)(2) (motion to reopen must be filed within 90 days of BIA order); Rodriguez-Lariz v. INS, 282 F.3d 1218, 1222 (9th Cir.2002) (BIA’s denial of a motion to reopen is reviewed for abuse of discretion). Further, we lack jurisdiction to review whether the BIA should have sua sponte granted petitioner’s motion to reopen despite its untimeliness because “the decision of the BIA whether to invoke its sua sponte authority is committed to its unfettered discretion.” See Ekimian v. INS, 303 F.3d 1153, 1159 (9th Cir.2002). Accordingly, respondent’s unopposed motion for summary disposition in part and to dismiss in part this petition for review is granted. All other pending motions are denied as moot. The temporary stay of removal confirmed by Ninth Circuit General Order 6.4(c) shall continue in effect until issuance of the mandate. 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 *636 courts of this circuit except as provided by 9 th Cir. R. 36-3.