                                                                           FILED
                            NOT FOR PUBLICATION                             JAN 19 2012

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




                             FOR THE NINTH CIRCUIT



MARCO ANTONIO ROMERO-                            No. 09-70415
ROMERO,
                                                 Agency No. A042-326-903
              Petitioner,

  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 January 10, 2012
                                 Pasadena, California

Before:       KOZINSKI, Chief Judge, REINHARDT and W. FLETCHER,
              Circuit Judges.

       Marco Antonio Romero-Romero seeks review of an order by the Board of

Immigration Appeals (“BIA”) denying his untimely motion to reopen removal

proceedings. The BIA declined to exercise its sua sponte authority to reopen under

8 C.F.R. § 1003.2(a).


          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       Romero argues that the BIA erred by placing the burden on him to establish

the reasons why the state court vacated his attempted rape conviction. However,

his reliance on Nath v. Gonzales, 467 F.3d 1185 (9th Cir. 2006), is misplaced

because that case did not involve an untimely motion or the BIA’s sua sponte

authority under § 1003.2(a).

       We lack jurisdiction to review the BIA’s discretionary decision whether to

exercise its sua sponte authority under § 1003.2(a). See, e.g., Mejia-Hernandez v.

Holder, 633 F.3d 818, 823-24 (9th Cir. 2011); Ekimian v. INS, 303 F.3d 1153,

1159-60 (9th Cir. 2002). Accordingly, we dismiss Romero’s petition for lack of

jurisdiction.

       DISMISSED.




                                         2
