                                                                           FILED
                              NOT FOR PUBLICATION                           DEC 13 2010

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




                               FOR THE NINTH CIRCUIT



JOSE LUIS RIOS and MARIA ELENA                    No. 09-70172
RIOS,
                                                  Agency Nos. A072-535-604
               Petitioners,                                   A072-535-605

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

               Respondent.



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

                              Submitted December 6, 2010 **

Before:        GOODWIN, RYMER, and GRABER, Circuit Judges.

       Jose Luis Rios and Maria Elena Rios, husband and wife and natives and

citizens of Peru, petition pro se for review of the Board of Immigration Appeals’

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

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

          *
             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).
denial of a motion to reopen. Toufighi v. Mukasey, 538 F. 3d 988, 992 (9th Cir.

2008). We deny in part and dismiss in part the petition for review.

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

reopen as untimely because it was filed more than ten years after the BIA’s final

order of removal. See 8 U.S.C. § 1229a(c)(7)(C)(i)(motion to reopen must be filed

within ninety days of final order of removal).

      We lack jurisdiction to review petitioners’ contention that they did not

receive the BIA’s 1997 decision because petitioners failed to exhaust this issue

before the BIA. See Barron v. Ashcroft, 358 F.3d 674, 678 (9th Cir. 2004).

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

sponte authority to reopen proceeding, see Ekimian v. INS, 303 F.3d 1153, 1159

(9th Cir. 2002)1, and its underlying order dismissing petitioners’ appeal from the

immigration judge’s decision denying suspension of deportation, Singh v. INS, 315

F.3d 1186, 1188 (9th Cir. 2003).

      PETITION FOR REVIEW DENIED in part; DISMISSED in part.




      1
       To the extent that this court might have jurisdiction over the denial of sua
sponte reopening, see Kucana v. Holder, 130 S. Ct. 827 (2010), we find the agency
did not abuse its discretion in denying such relief.

                                          2                                      09-70172
3   09-70172
