                                                                            FILED
                              NOT FOR PUBLICATION                            DEC 30 2009

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




                              FOR THE NINTH CIRCUIT



 JOSE SANTOS TORRES-GARCIA,                       Nos. 06-71447
                                                       07-72629
               Petitioner,
                                                  Agency No. A035-214-914
   v.

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

               Respondent.



                       On Petitions for Review of Orders of the
                           Board of Immigration Appeals

                             Submitted December 15, 2009 **


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

        In these consolidated petitions for review, Jose Santos Torres-Garcia, a

native and citizen of Mexico, petitions for review of the Board of Immigration

Appeals’ (“BIA”) orders dismissing his appeal from an immigration judge’s (“IJ”)

          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
             The panel unanimously concludes that this case is suitable for
decision without oral argument. See Fed. R. App. P. 34(a)(2).

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order of removal and denying his subsequent motion to reopen. Our jurisdiction is

governed by 8 U.S.C. § 1252. We review de novo questions of law.

Vasquez-Zavala v. Ashcroft, 324 F.3d 1105, 1107 (9th Cir. 2003). We review for

abuse of discretion the denial of a motion to reopen. Cano-Merida v. INS, 311

F.3d 960, 964 (9th Cir. 2002). In 06-71447, we deny the petition for review. In

07-72629, we deny in part and dismiss in part the petition for review.

       Torres-Garcia’s conviction for violating Cal. Health & Safety Code

§ 11379(a) is an aggravated felony under 8 U.S.C. § 1101(a)(43)(B) because the

record of conviction establishes that he was convicted of selling

methamphetamine. Cf. Sandoval-Lua v. Gonzales, 499 F.3d 1121, 1128 (9th Cir.

2007). In addition, Torres-Garcia’s former counsel conceded before the IJ that his

conviction for violating Cal. Health & Safety Code § 11378 is an aggravated

felony under 8 U.S.C. § 1101(a)(43)(B).

       The BIA did not abuse its discretion in denying Torres-Garcia’s motion to

reopen as untimely because the motion was filed almost a year after the final

administrative order, see 8 U.S.C. § 1229a(c)(7)(C)(i), and Torres-Garcia did not

show he was entitled to equitable tolling, see Iturribarria v. INS, 321 F.3d 889, 897

(9th Cir. 2003).




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       Although we have jurisdiction to review Torres-Garcia’s contention that the

application of § 440(d) of the Antiterrorism and Effective Death Penalty Act

(“AEDPA”) has an impermissibly retroactive effect in his case, Saravia-Paguada

v. Gonzales, 488 F.3d 1122, 1130 (9th Cir. 2007), his contention lacks merit

because he was convicted after AEDPA’s effective date, id. at 1133.

       We lack jurisdiction to review the BIA’s decision whether to invoke its sua

sponte authority to reopen proceedings. See Ekimian v. INS, 303 F.3d 1153, 1159

(9th Cir. 2002).

       In 06-71447, PETITION FOR REVIEW DENIED.

      In 07-71860, PETITION FOR REVIEW DENIED in part; DISMISSED
in part.




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