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Jesus Casteneda-Rivera v. Eric H. Holder Jr.

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT


March 23, 2011

JESUS CASTENEDA-RIVERA, PETITIONER,
v.
ERIC H. HOLDER JR., ATTORNEY GENERAL RESPONDENT.

On Petition for Review of an Order of the Board of Immigration Appeals Agency No. A077-125-430

FILED

Agency No. A077-125-430

ORDER

Before: CANBY, THOMAS, and W. FLETCHER, Circuit Judges.

The government's petition for panel rehearing is granted.

The memorandum disposition filed on June 8, 2010, is withdrawn. A new memorandum disposition will be filed concurrently with this order.

Any petition for rehearing of the new memorandum disposition must be filed within 45 days.

FILED

NOT FOR PUBLICATION

MARCH 23, 2011

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

JESUS CASTENEDA-RIVERA, Petitioner, v. ERIC H. HOLDER Jr., Attorney General, Respondent.

No. 07-73379

MEMORANDUM *fn1

Submitted May 25, 2010*fn2

Before: CANBY, THOMAS, and W. FLETCHER, Circuit Judges.

Jesus Casteneda-Rivera, a native and citizen of Mexico, petitions for review of the Board of Immigration Appeals' ("BIA") order denying his motion to reopen proceedings to apply for adjustment of status. Our jurisdiction is governed by 8 U.S.C. § 1252. We deny in part and dismiss in part the petition for review.

The BIA did not abuse its discretion in denying Casteneda-Rivera's motion as untimely where the motion was filed more than five months after the BIA's final administrative order. See 8 C.F.R. § 1003.2(c)(2); see Lara-Torres v. Ashcroft, 383 F.3d 968, 972 (9th Cir. 2004) (holding that BIA denials of motions to reopen are reviewed for abuse of discretion), amended by 404 F.3d 1105 (9th Cir. 2005).

We lack jurisdiction to review Casteneda-Rivera's equitable tolling contention because he failed to exhaust this claim before the agency. See Barron v. Ashcroft, 358 F.3d 674, 678 (9th Cir. 2004).

We agree with the determination in this court's March 13, 2008, order that at the time that Casteneda-Rivera filed his motion to stay his voluntary departure period, his voluntary departure period had expired. Casteneda-Rivera's motion to reopen did not stay his period of voluntary departure because the motion was untimely. See Azarte v. Ashcroft, 394 F.3d 1278, 1280 (9th Cir. 2005) (concluding that the BIA abuses its discretion "when it dismisses a motion to reopen, timely filed by an alien during his voluntary period, because the alien subsequently fails to depart prior to the end of the period while awaiting the BIA's decision) (emphasis added); see also Barroso v. Gonzales, 429 F.3d 1195, 1205 (9th Cir. 2005) ("the timely filing of a motion to reopen. . . automatically tolls the voluntary departure period") (emphasis added).

PETITION FOR REVIEW DENIED in part; DISMISSED in part.


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