                                                                           FILED
                             NOT FOR PUBLICATION                            JUL 12 2010

                                                                        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. 07-70129
PINTO,
                                                 Agency No. A072-776-206
               Petitioner,

  v.                                             MEMORANDUM *

ERIC H. HOLDER, Jr., Attorney General,

               Respondent.



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

                             Submitted June 29, 2010 **

Before:        ALARCÓN, LEAVY, and GRABER, Circuit Judges.

       Walfre Ricardo Martinez Pinto, a native and citizen of Guatemala, petitions

for review of the Board of Immigration Appeals’ (“BIA”) order denying his

motion to reopen. Our jurisdiction is governed by 8 U.S.C. § 1252. We review de




          *
             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).
novo questions of law. Simeonov v. Ashcroft, 371 F.3d 532, 535 (9th Cir. 2004).

We deny in part and dismiss in part the petition for review.

         Martinez Pinto has waived any challenge to the BIA’s conclusion that his

October 15, 2004, motion to reopen was untimely and did not qualify for the

regulatory exception at 8 C.F.R. § 1003.2(c)(3)(ii). See Martinez-Serrano v. INS,

94 F.3d 1256, 1259-60 (9th Cir. 1996) (issues not raised and argued in a party’s

opening brief are waived).

         We note that, contrary to Martinez Pinto’s contention, the BIA’s decision

indicates it considered his eligibility for relief under the Convention Against

Torture.

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

sponte authority to reopen proceedings. See Ekimian v. INS, 303 F.3d 1153, 1159

(9th Cir. 2002), see also Nevarez Nevarez v. Holder, 572 F.3d 605, 607 (9th Cir.

2009).




                                            2                                      07-70129
      We lack authority to consider Martinez Pinto’s claim that the court should

reconsider its holding in Ekimian. See Murray v. Cable Nat. Broadcasting Co., 86

F.3d 858, 860 (9th Cir. 1996) (“[O]nly a panel sitting en banc may overturn

existing Ninth Circuit precedent.”) (internal quotation and citation omitted).

      PETITION FOR REVIEW DENIED in part; DISMISSED in part.




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