                                                                           FILED
                            NOT FOR PUBLICATION                             FEB 11 2010

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




                            FOR THE NINTH CIRCUIT



BEATRICE JACQUELINE MARC                         No. 05-73879
MOINY; AURORE DELPHINE RAPHAI
JENART,                                          Agency Nos. A073-956-902
                                                            A073-949-700
             Petitioners,

  v.                                             MEMORANDUM *

ERIC H. HOLDER Jr., Attorney General,

             Respondent.



BEATRICE JACQUELINE MARC                         No. 06-72293
MOINY; AURORE DELPHINE RAFAJ
JENART,                                          Agency Nos. A073-956-902
                                                            A073-949-700
             Petitioners,

  v.

ERIC H. HOLDER Jr., Attorney General,

             Respondent.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
BEATRICE JACQUELINE MARC                        No. 07-72020
MOINY; AURORE DELPHINE RAPHAI
JENART,                                         Agency Nos. A073-956-902
                                                           A073-949-700
             Petitioners,

  v.

ERIC H. HOLDER Jr., Attorney General,

             Respondent.



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

                            Submitted February 3, 2010 **
                               Pasadena, California

Before: KLEINFELD, WARDLAW and CALLAHAN, Circuit Judges.




       In these consolidated petitions for review, Beatrice Moiny and her daughter

Aurore Jenart, natives and citizens of Belgium, petition for review of the Board of

Immigration Appeals’ orders denying their motions to reopen. We have

jurisdiction under 8 U.S.C. § 1252. We review the BIA’s denial of a motion to

reopen for an abuse of discretion, Ontiveros-Lopez v. INS., 213 F.3d 1121, 1124



        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).

                                          2
(9th Cir. 2000), and we review questions of this court’s jurisdiction de novo.

Didrickson v. U.S. Dept. of Interior, 982 F.2d 1332, 1337 (9th Cir. 1992).




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

reopen as untimely where petitioners filed their April 2005 motion to reopen over

two years after the BIA’s final order of removal, see 8 C.F.R. § 1003.2(c)(2)

(motion to reopen must be filed within ninety days of final order of removal), and

where petitioners did not show they acted with due diligence in discovering the

alleged deficiencies of their prior counsel. See Iturribarria v. INS, 321 F.3d 889,

897 (9th Cir. 2003) (time in which to file motion to reopen may be equitably tolled

“when petitioner is prevented from filing because of deception, fraud, or error, as

long as the petitioner acts with due diligence”).




      The BIA denied petitioners' October 2005 and November 2006 motions to

reopen, and declined to exercise its discretion to sua sponte reopen proceedings. 8

C.F.R. § 1003.2. The BIA concluded that the petitioners did not provide any

material information that would exempt them from the time and numerical

limitations set forth in 8 C.F.R. § 1003.2, and did not demonstrate any exceptional

circumstances for the BIA to exercise its sua sponte authority over their untimely


                                           3
motions. We agree that petitioners' new arguments in the October 2005 and

November 2006 motions to reopen do not constitute material evidence of “changed

circumstances arising in the country of nationality” necessary for an exception to

time and number limitations for motions to reopen. 8 C.F.R. §§ 1003.2(c)(2)-(3).

Because Petitioners made no showing before the BIA that would exempt them

from the time and number limitations, we lack jurisdiction to review the BIA’s

decision not to invoke its sua sponte authority to reopen proceedings under 8

C.F.R. § 1003.2(a). See Ekimian v. INS, 303 F.3d 1153, 1159 (9th Cir. 2002).




      Petitions for review DISMISSED in part; DENIED in part.




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