                             NOT FOR PUBLICATION

                      UNITED STATES COURT OF APPEALS                       FILED
                              FOR THE NINTH CIRCUIT                         FEB 22 2010

                                                                        MOLLY C. DWYER, CLERK
                                                                         U .S. C O U R T OF APPE ALS

 NASIM NAIF MAJDOUB,                              Nos. 05-76191
                                                       06-70188
               Petitioner,
                                                  Agency No. A078-188-041
   v.

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

               Respondent.



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

                             Submitted February 16, 2010 **

Before:        FERNANDEZ, GOULD, and M. SMITH, Circuit Judges.

        In these consolidated petitions for review, Nasim Naif Majdoub, a native of

Palestine and citizen of Israel, petitions for review of the Board of Immigration

Appeals’ (“BIA”) order denying his motion to reconsider (No. 05-76191) and his

motion to reopen (No. 06-70188) proceedings. Our jurisdiction is governed by



          *
             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).

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8 U.S.C. § 1252. We review for an abuse of discretion the agency’s denial of a

motion to reopen and reconsider. Lara-Torres v. Ashcroft, 383 F.3d 968, 972 (9th

Cir. 2004), amended by 404 F.3d 1105 (9th Cir. 2005). In No. 05-76191, we

dismiss the petition for review, and in No. 06-70188, we deny in part and dismiss

in part the petition for review.

       With respect to petition No. 05-76191, lack jurisdiction to consider

Majdoub’s contentions regarding the BIA’s June 9, 2005 order, because this

petition for review is not timely as to that order. See Singh v. INS, 315 F.3d 1186,

1188 (9th Cir. 2003). In Majhoub’s opening brief he fails to challenge the BIA’s

September 7, 2005 order denying his motion to reconsider. See Martinez-Serrano

v. INS, 94 F.3d 1256-60 (9th Cir. 1996) (issues not raised and argued in opening

brief are waived).

       With respect to petition No. 06-70188, the BIA did not abuse its discretion

in denying Majdoub’s motion to reopen as untimely where the motion was filed

more than five months after the BIA’s June 9, 2005 order dismissing his appeal.

See 8 C.F.R. § 1003.2(c)(2).

       To the extent Majdoub contends that the BIA should have sua sponte

reopened his motion despite its untimeliness, we lack jurisdiction to review this

claim because the decision of the agency whether to invoke its sua sponte authority




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is committed to its unfettered discretion. See Ekimian v. INS, 303 F.3d 1153, 1159

(9th Cir. 2002).

       No. 05-76191: PETITION FOR REVIEW DISMISSED.

    No. 06-70188: PETITION FOR REVIEW DENIED in part and
DISMISSED in part.




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