                                                                           FILED
                           NOT FOR PUBLICATION                              NOV 19 2009

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




                            FOR THE NINTH CIRCUIT



HECTOR MIGUEL SANDOVAL,                          No. 06-74449

             Petitioner,                         Agency No. A075-707-510

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

             Respondent.



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

                      Argued and Submitted October 7, 2009
                              Pasadena, California

Before: HALL, W. FLETCHER, and CLIFTON, Circuit Judges.

       Hector Miguel Sandoval (“Sandoval”) is a 25-year-old native and citizen of

Mexico who has lived continuously in the United States since February 1990. In

removal proceedings initiated in 2001, Sandoval conceded removability but

applied for cancellation of removal. In October 2003, fifteen days after the Board

of Immigration Appeals (“Board” or “BIA”) upheld an order of the Immigration


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Judge (“IJ”) denying his application for cancellation of removal, Sandoval married

a U.S. citizen, with whom he has a five-year-old U.S. citizen child. Sandoval did

not, however, seek judicial review of the October 2003 decision in which the

Board—acting pursuant to a policy that predated its decision in In re A-M-, 23 I. &

N. Dec. 737 (BIA 2005), and this Court’s decision in Padilla-Padilla v. Gonzales,

463 F.3d 972 (9th Cir. 2006)—issued a “streamlined” affirmance of the IJ’s

decision, but reduced the period of voluntary departure ordered by the IJ from sixty

to thirty days.

       This Court previously upheld an October 2004 decision of the Board

denying Sandoval’s first motion to reopen as untimely, and rejecting his plea for

equitable tolling based on a claim of ineffective assistance by a “notario” who had

failed timely to seek reopening and an adjustment of status based on his marriage

to a U.S. citizen. See Sandoval v. Gonzales, 166 F.App’x 993 (9th Cir. 2006)

(Sandoval I). The Board found, and this Court agreed, that Sandoval had not

exercised due diligence in pursuing his ineffective assistance claim because he did

not bring his first motion to reopen until more than five months after retaining new

counsel. Id. at 994.

       In the instant matter, Sandoval petitions for review of an August 14, 2006

decision in which the Board denied his second motion to reopen, finding that it was


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untimely and number-barred. We have jurisdiction to review the Board’s decision

in this respect. 8 U.S.C. § 1252. We review the denial of a motion to reopen under

the deferential abuse of discretion standard, and will reverse the denial of a motion

to reopen only if it was arbitrary, irrational, or contrary to law. See Perez v.

Mukasey, 516 F.3d 770, 773 (9th Cir. 2008).

      Sandoval filed his second motion to reopen more than a year after the

Board’s October 29, 2004 decision, the final administrative decision rendered in

the proceedings sought to be reopened. This was well beyond the 90-day period

for reopening prescribed by statute and regulation. 8 U.S.C. § 1229a(c)(7)(C); 8

C.F.R. § 1003.2(c)(2). Sandoval’s motion to reopen also exceeded the numerical

limitations on filing such motions. 8 U.S.C. § 1229a(c)(7)(A); 8 C.F.R. §

1003.2(c)(2); see also Malty v. Ashcroft, 381 F.3d 942, 945 (9th Cir. 2004). Thus,

the Board did not abuse its discretion when it denied Sandoval’s second motion to

reopen for failure to satisfy statutory and regulatory requirements. Nor did the

Board abuse its discretion, or otherwise err, in adopting its previous decision

rejecting Sandoval’s plea for equitable tolling based on ineffective assistance of

counsel—a ruling that was affirmed by this Court in Sandoval I, 166 F.App’x at

994. See also Iturribarria v. INS, 321 F.3d 889, 897-98 (9th Cir. 2003).




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      Sandoval further contends, however, that the Board erred and abused its

discretion when it denied his request for reopening under its sua sponte authority,

and his request to reinstate his original 60-day period for voluntary departure. This

latter argument is essentially a claim that intervening case law, including In re A-

M-, 23 I. & N. Dec. 737, and Padilla-Padilla, 463 F.3d 972, effected a

“fundamental” change in the law presenting an “exceptional situation” warranting

an exercise of the Board’s sua sponte authority to reopen. See In re G-D-, 22 I. &

N. Dec. 1132, 1134-35 (BIA 1999); In re J-J-, 21 I. & N. Dec. 976, 984 (BIA

1997). Before we can reach the merits of these claims, we must determine whether

we have jurisdiction to review the BIA’s decision in these respects.

      We do, of course, have jurisdiction to determine our own jurisdiction, and an

obligation to do so sua sponte. Diaz-Covarrubias v. Mukasey, 551 F.3d 1114,

1117-18 (9th Cir. 2009). But we do not have jurisdiction to review Sandoval’s

claim that the BIA abused its discretion by declining to exercise its authority to

reopen his removal proceedings sua sponte. Ekimian v. INS, 303 F.3d 1153, 1157-

59 (9th Cir. 2002) (the courts of appeals are without jurisdiction to evaluate an

alien’s claim that the BIA should have reopened his case sua sponte). Indeed, in

Ekimian, we specifically rejected an argument that In re J-J-, and the Board’s other

“exceptional situation” cases, provide “a meaningful judicial standard” against


                                          -4-
which to evaluate whether the BIA abused its discretion by declining to exercise its

authority under 8 C.F.R. § 1003.2(a) to reopen sua sponte. 303 F.3d at 1158.

      We also lack jurisdiction to decide whether the Board properly reduced

Sandoval’s voluntary departure period in the first place. Sandoval did not timely

file a petition for review of the Board’s October 8, 2003 decision reducing his

period for voluntary departure. We are without jurisdiction to review claims that

were not raised in accordance with the statutory filing requirements for petitions

for review of agency decisions. 8 U.S.C. § 1252(b)(1); Membreno v. Gonzales,

425 F.3d 1227, 1229 (9th Cir. 2005) (30-day deadline in 8 U.S.C. § 1252(b)(1) is

mandatory and jurisdictional, and cannot be tolled); see also Minasyan v. Mukasey,

553 F.3d 1224, 1229 (9th Cir. 2009) (where alien fails to file petition for review

within 30 days of final agency order denying relief from removal, court of appeals

lacks jurisdiction over those claims).

      Accordingly, to the extent Sandoval seeks review of the Board’s decision to

deny his second motion to reopen as untimely and number-barred, the petition is

DENIED. To the extent Sandoval asks this Court to review the Board’s denial of

his requests to exercise its authority to reopen his case sua sponte and reinstate his

original period of voluntary departure, the petition is DISMISSED.




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