                                                                            FILED
                            NOT FOR PUBLICATION                              MAY 09 2011

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




                            FOR THE NINTH CIRCUIT



JESUS ANGEL RODRIGUEZ-                           No. 09-72042
ALVARADO,
                                                 Agency No. A072-524-486
              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 May 2, 2011
                              Pasadena, California

Before: SILVERMAN, TALLMAN, and CLIFTON, Circuit Judges.

       Jesus Rodriguez-Alvarado, a native and citizen of Peru, petitions for review

of a decision of the Board of Immigration Appeals denying his motion to reopen as

untimely. We deny the petition in part and dismiss it in part.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      The 90-day deadline for motions to reopen in 8 C.F.R. § 3.2(c)(2) was not

applied retroactively. A statute or regulation has a retroactive effect when it

“creates a new obligation, imposes a new duty, or attaches a new disability, in

respect to transactions or considerations already past.” Landgraf v. USI Film

Products, 511 U.S. 244, 269 (1994) (citation omitted). At the time 8 C.F.R. §

3.2(c)(2) became effective, Rodriguez had not yet filed a motion to reopen. He

could have met the deadline by filing a motion to reopen by September 30, 1996 –

three months from the regulation’s effective date and over five months after his

deportation order. See Matter of Monges-Garcia, 25 I. & N. Dec. 246, 249-250

(BIA 2010).

      The court lacks jurisdiction to review petitioner’s due process arguments

because he did not exhaust them before the BIA. 8 U.S.C. § 1252(d)(1); Barron v.

Ashcroft, 358 F.3d 674, 678 (9th Cir. 2004).

      The request for judicial notice is denied because the court may not take

notice of materials outside of the record. 8 U.S.C. § 1252 (b)(4)(A); Fisher v. INS,

79 F.3d 955, 964 (9th Cir. 1996) (en banc).

      Petitioner’s motion for stay of removal is denied.

      PETITION DENIED IN PART AND DISMISSED IN PART.




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