                                                                           FILED
                                NOT FOR PUBLICATION                         DEC 28 2009

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




                                FOR THE NINTH CIRCUIT



 MARTHA LIMA-CORTEZ,                                No. 07-71771

                 Petitioner,                        Agency No. A078-253-693

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

                 Respondent.



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

                               Submitted December 15, 2009 **

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

        Martha Lima-Cortez, a native and citizen of Mexico, petitions for review of

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

removal proceedings. Our jurisdiction is governed by 8 U.S.C. § 1252. We review



            *
             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).

/Research
for abuse of discretion the denial of a motion to reopen, Perez v. Mukasey, 516

F.3d 770, 773 (9th Cir. 2008), and review de novo questions of law, Dela Cruz v.

Mukasey, 532 F.3d 946, 948 (9th Cir. 2008) (per curiam). We deny in part and

dismiss in part the petition for review.

        The BIA did not abuse its discretion in denying as untimely Lima-Cortez’s

motion to reopen because the motion was filed more than 10 months after the

BIA’s December 15, 2005, order dismissing the underlying appeal. See 8 C.F.R.

§ 1003.2; see also Dela Cruz, 532 F.3d at 949 (“[T]he pendency of a petition for

review of an order of removal does not toll the statutory time limit for the filing of

a motion to reopen with the BIA.”). Accordingly, Lima-Cortez’s due process

claim fails. See Lata v. INS, 204 F.3d 1241, 1246 (9th Cir. 2000) (requiring error

for a due process violation).

        To the extent Lima-Cortez challenges the BIA’s decision not to invoke its

sua sponte authority to reopen proceedings, we lack jurisdiction. See Ekimian v.

INS, 303 F.3d 1153, 1159 (9th Cir. 2002).

        Lima-Cortez’s remaining contentions are unpersuasive.

        PETITION FOR REVIEW DENIED in part; DISMISSED in part.




/Research                                  2                                    07-71771
