VARGAS v. MUKASEY, 08-74553 (11th Cir. 2-2-2009)

The motion to proceed in forma pauperis is granted. The Clerk shall amend the docket to reflect this status.

This is a petition for review of the Board of Immigration Appeals' ("BIA") order denying petitioners' second motion to reopen removal proceedings.

We review the BIA's ruling on a motion to reopen for abuse of discretion. Perez v. Mukasey, 516 F.3d 770, 773 (9th Cir. 2008).

An alien who is subject to a final order of removal is limited to filing one motion to reopen, and that motion must be filed within 90 days of the date of entry of a final order of removal. 8 U.S.C. § 1229a(c)(7)(A), (C)(i); 8 C.F.R. § 1003.2(c)(2). Because this is petitioners' second motion to reopen, filed well beyond the 90-day deadline, the BIA did not abuse its discretion in denying petitioners' motion to reopen. See id.

Accordingly, the petition for review is denied in part because the questions raised by this petition are so insubstantial as not to require further argument. See United States v. Hooton, 693 F.2d 857, 858 (9th Cir. 1982) (per curiam) (stating standard).

As to petitioners' request to the BIA for sua sponte reopening, this court lacks jurisdiction to review the BIA's discretionary decision to deny sua sponte reopening of petitioners' case. See 8 C.F.R. § 1003.2(a); Ekimian v. INS, 303 F.3d 1153 (9th Cir. 2002). Accordingly, the petition for review is dismissed in part.

All other pending motions are denied as moot. The temporary stay of removal shall continue in effect until issuance of the mandate.

PETITION FOR REVIEW DENIED in part; DISMISSED in part.