                                                                           FILED
                               NOT FOR PUBLICATION                          JAN 06 2011

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




                               FOR THE NINTH CIRCUIT



EFRAIN LEON MARTINEZ; PATRICIA                     No. 06-74941
LEON,
                                                   Agency Nos. A095-307-596
               Petitioners,                                    A096-307-599

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

               Respondent.



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

                              Submitted December 14, 2010 **

Before:        GOODWIN, WALLACE, and THOMAS, Circuit Judges.

       Efrain Leon Martinez and Patricia Leon, natives and citizens of Mexico,

petition for review of the Board of Immigration Appeals’ (“BIA”) order denying

their motion to reopen removal proceedings. We have jurisdiction under 8 U.S.C.

§ 1252. We review for abuse of discretion the denial of a motion to reopen, and

          *
             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).
review de novo questions of law. Mohammed v. Gonzales, 400 F.3d 785, 791-92

(9th Cir. 2005). We deny the petition for review.

      The BIA did not abuse its discretion in denying petitioners’ April 26, 2006,

motion to reopen on the ground that petitioners were statutorily ineligible for

cancellation of removal because they overstayed their voluntary departure period.

See 8 U.S.C. § 1229c(d). We do not consider petitioners’ contentions regarding

prejudice stemming from alleged ineffective assistance of counsel because

petitioners’ ineligibility for cancellation based on their failure to depart is

dispositive.

      Petitioners’ pending motion for a stay of the voluntary departure period is

denied. See Garcia v. Ashcroft, 368 F.3d 1157, 1159-60 (9th Cir. 2004) (order)

(court lacks jurisdiction to grant a voluntary departure stay where the request is

filed after expiration of the voluntary departure period).

      PETITION FOR REVIEW DENIED.




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