                                                                        FILED
                   UNITED STATES COURT OF APPEALS                        MAR 23 2011

                                                                     MOLLY C. DWYER, CLERK
                          FOR THE NINTH CIRCUIT                       U .S. C O U R T OF APPE ALS




 JESUS CASTENEDA-RIVERA,                             No. 07-73379

          Petitioner,                                Agency No. A077-125-430

 v.
                                                     ORDER
 ERIC H. HOLDER JR., Attorney General

          Respondent.



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      The memorandum disposition filed on June 8, 2010, is withdrawn.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                             NOT FOR PUBLICATION                            MAR 23 2011

                                                                        MOLLY C. DWYER, CLERK
                      UNITED STATES COURT OF APPEALS                     U .S. C O U R T OF APPE ALS




                             FOR THE NINTH CIRCUIT



JESUS CASTENEDA-RIVERA,                          No. 07-73379

               Petitioner,                       Agency No. A077-125-430

  v.
                                                 MEMORANDUM *
ERIC H. HOLDER Jr., Attorney General,

               Respondent.



                       On Petition for Review of an Order of the
                           Board of Immigration Appeals

                              Submitted May 25, 2010 **

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




          *
             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).
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.


                                          2                                    07-73379
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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