                                                                           FILED
                              NOT FOR PUBLICATION                           JUN 18 2010

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




                               FOR THE NINTH CIRCUIT



ANTONIO ROSAS-MOYA; MARIA                          No. 06-70677
GUADALUPE ROSAS,
                                                   Agency Nos. A95-450-195
              Petitioners,                                     A95-450-196

  v.

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

              Respondent.



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

                                Submitted June 9, 2010 **


Before: D.W. NELSON and GOULD, Circuit Judges, and GWIN,*** District
Judge.




       *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
            The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
        ***
            The Honorable James S. Gwin, United States District Judge for the
Northern District of Ohio, sitting by designation.
      Antonio Rosas Moya and Maria Guadelupe Rosas, natives and citizens of

Mexico, petition pro se for review of the Board of Immigration Appeals’ denial of

their second motion to reopen removal proceedings on the grounds that the motion

was untimely, numerically barred, and beyond the voluntary departure period. We

have jurisdiction under 8 U.S.C. § 1252, and we deny in part and dismiss in part

the petition for review.

      The petitioners have waived any challenge to the Board’s January 12, 2006

denial of their second motion to reopen because they failed to address that decision

in their opening brief. See Martinez-Serrano v. INS, 94 F.3d 1256, 1259-60 (9th

Cir. 1996).

      Moreover, even if the petitioners had not forfeited their challenge, the

Board’s order was not an abuse of discretion. See Ontiveros-Lopez v. INS, 213

F.3d 1121, 1124 (9th Cir. 2000). First, the Board correctly concluded that the

petitioners’ second motion to reopen—filed more than two years after the Board

affirmed the immigration judge’s denial of their application for cancellation—was

untimely. See 8 C.F.R. § 1003.2(c)(2). Equitable tolling of 8 C.F.R. §

1003.2(c)(2)’s 90-day time limit was unavailable because the petitioners should

have known of the basis of their second motion (i.e., their son’s medical condition

and their lawyer’s allegedly ineffective assistance before the immigration judge) no


                                          2
later than August 3, 2004, when the Board affirmed the immigration judge’s

removal order. Second, the Board correctly concluded that the petitioners’ second

motion to reopen was numerically barred. See id. Third, the Board correctly

concluded that because the petitioners remained in the United States beyond the

voluntary departure period—which, per the immigration judge’s removal order,

expired on September 2, 2004—they were ineligible for cancellation of removal.

See 8 U.S.C. § 1229c(d)(1)(B).

      The petitioners challenge the Board’s August 3, 2004 determination that

they failed to satisfy the “exceptional and extremely unusual hardship” requirement

for cancellation of removal, but this Court lacks jurisdiction to review that

determination. As a threshold matter, the petitioners failed to file a timely petition

for review of that order. See 8 U.S.C. § 1252(b)(1). Moreover, even if they had

filed a timely petition for review, this Court would lack jurisdiction to review the

Board’s discretionary “exceptional and extremely unusual hardship” determination.

See id. § 1252(a)(2)(B)(i); see also Romero-Torres v. Ashcroft, 327 F.3d 887, 890-

92 (9th Cir. 2003).

      PETITION FOR REVIEW DISMISSED IN PART AND DENIED IN
      PART.




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