                                                                           FILED
                              NOT FOR PUBLICATION                           JUL 30 2013

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




                              FOR THE NINTH CIRCUIT



WALFRE RICARDO MARTINEZ                          No. 11-71505
PINTO; JESSI FLORIDALMA
VILLATORO-GONZALEZ,                              Agency Nos.         A072-776-206
                                                                     A070-810-279
               Petitioners,

  v.                                             MEMORANDUM *

ERIC H. HOLDER, Jr., Attorney General,

               Respondent.



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

                              Submitted July 24, 2013 **

Before:        ALARCÓN, CLIFTON, and CALLAHAN, Circuit Judges.

       Walfre Ricardo Martinez Pinto and Jessi Floridalma Villatoro-Gonzalez,

natives and citizens of Guatemala, petition for review of the Board of Immigration

Appeals’ (“BIA”) order denying their motion to reopen removal proceedings. Our


          *
             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).
jurisdiction is governed by 8 U.S.C. § 1252. We review for abuse of discretion the

BIA’s denial of a motion to reopen. Najmabadi v. Holder, 597 F.3d 983, 986 (9th

Cir. 2010). We deny in part and dismiss in part the petition for review.

      The BIA did not abuse its discretion by denying petitioners’ motion to

reopen as untimely, see 8 C.F.R. § 1003.2(c)(2), and petitioners failed to produce

new, previously unavailable, material evidence that would warrant reopening, see

Najmabadi v. Holder, 597 F.3d 983, 990 (9th Cir. 2010). We reject petitioners’

contention that the BIA failed to consider the expert report. See Almaghzar v.

Gonzales, 457 F.3d 915, 922 (9th Cir. 2006).

      We reject petitioners’ contention that the BIA ignored their argument that it

was error to not adjudicate Martinez Pinto’s claim under the Convention Against

Torture (“CAT”) when it decided his direct appeal, in light of our July 12, 2010,

decision in which we noted that the BIA considered his eligibility for CAT relief.

      We lack jurisdiction to review the BIA’s decision not to exercise its sua

sponte authority to reopen proceedings. See Mejia-Hernandez v. Holder, 633 F.3d

818, 823-24 (9th Cir. 2011). The BIA’s refusal to exercise its sua sponte authority

to reopen proceedings with respect to Martinez Pinto’s grant of voluntary departure

was not based on any factual errors.

      PETITION FOR REVIEW DENIED in part; DISMISSED in part.


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