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Nevarez v. Gonzales
Citation: 207 F. App'x 777Docket: Nos. 04-75914, 05-73877
Court: Court of Appeals for the Ninth Circuit; November 14, 2006; Federal Appellate Court
Herminio Nevarez Nevarez and Aracely Y. Nevarez, citizens of Mexico, petitioned for review of the Board of Immigration Appeals (BIA) order that denied their motion to reopen removal proceedings. Jurisdiction is established under 8 U.S.C. § 1252, with the court reviewing the BIA's denial for abuse of discretion. The petition is partially denied, partially dismissed, and partially granted. The BIA did not abuse its discretion in denying the motion to reopen as it was filed more than two months after the 90-day limit set forth in 8 C.F.R. § 1003.2(c)(2). The court emphasized that it only reverses such denials if they are arbitrary, irrational, or contrary to law. Petitioners waived any challenge to the BIA’s original order denying their cancellation of removal by failing to raise relevant arguments in their opening brief. The petitioners claimed that the BIA violated their due process rights by denying the untimely motion to reopen; however, this allegation does not present a colorable constitutional claim. Traditional abuse of discretion challenges are insufficient to invoke the court's jurisdiction under these circumstances. The BIA's order from November 3, 2004, which reduced the immigration judge's granted voluntary departure period from 60 days to 30 days, was found improper. The BIA, having issued a streamlined order, was required to affirm the entire decision of the immigration judge, including the voluntary departure period. Consequently, the petition is granted regarding this aspect, and the case is remanded to the BIA for further proceedings concerning voluntary departure. The disposition of the case is not suitable for publication and cannot be cited in future cases except as allowed by 9th Cir. R. 36-3.