                                                                           FILED
                             NOT FOR PUBLICATION                            JUN 08 2010

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




                             FOR THE NINTH CIRCUIT



JESUS CASTENEDA-RIVERA,                          No. 07-73379

               Petitioner,                       Agency No. A077-125-430

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

               Respondent.



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

                              Submitted May 25, 2010 **

Before:        CANBY, THOMAS, and W. FLETCHER, Circuit Judges.

       Jesus Casteneda-Rivera, a native and citizen of Mexico, petitions for review

of the Board of Immigration Appeals’ (“BIA”) order denying his motion to reopen




          *
             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).
to apply for adjustment of status. Our jurisdiction is governed by 8 U.S.C. § 1252.

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

      The BIA did not abuse its discretion in denying Casteneda-Rivera’s motion

as untimely where the motion was filed more than five months after the BIA’s final

administrative order. See 8 C.F.R. § 1003.2(c)(2); see Lara-Torres v. Ashcroft,

383 F.3d 968, 972 (9th Cir. 2004) (holding that BIA denials of motions to reopen

are reviewed for abuse of discretion), amended by 404 F.3d 1105 (9th Cir. 2005).

      We lack jurisdiction to review Casteneda-Rivera’s equitable tolling

contention because he failed to exhaust this claim before the agency. See Barron v.

Ashcroft, 358 F.3d 674, 678 (9th Cir. 2004).

      We agree with Casteneda-Rivera that at the time of this court’s March 13,

2008, order, his voluntary departure period had not expired. We therefore vacate

the order to the extent that it denied his motion to stay his voluntary departure

period, and we remand for the BIA to address in the first instance whether Dada v.

Mukasey, – U.S. –, 128 S. Ct. 2307 (2008), applies to the circumstances of this

case. See Nevarez Nevarez v. Holder, 572 F.3d 605, 608-10 (9th Cir. 2009)

(remanding for the BIA to address in the first instance whether Dada applies

retroactively to aliens whose voluntary departure had been automatically stayed

during the pendency of their motions to reopen).


                                           2                                    07-73379
Each party shall bear its own costs for this petition for review.

PETITION FOR REVIEW DENIED in part; DISMISSED in part;
GRANTED in part; REMANDED.




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