De Esquivel v. Ashcroft

MEMORANDUM **

Carolina Mesa de Esquivel and her husband Jorge Esquivel Villasenor, natives and citizens of Mexico, petition for review of the Board of Immigration Appeal’s (“BIA”) order denying them motion to reconsider or reopen cancellation of removal proceedings. We have jurisdiction under 8 U.S.C. § 1252. We review for abuse of discretion, Celis-Castellano v. Ashcroft, 298 F.3d 888, 890 (9th Cir. 2002), and will reverse the denial of a motion to reopen only if it is “arbitrary, irrational or contrary to law.” Singh v. INS, 295 F.3d 1037, 1039 (9th Cir. 2002). We deny the petition for review.

The BIA did not abuse its discretion by denying the petitioners’ untimely motion for reconsideration. See 8 C.F.R. § 1003.2(c)(2) (requiring that reconsideration motion be filed within 30 days after the mailing of the underlying decision).

Contrary to the petitioners’ assertion, the BIA considered their request to reopen proceedings. The BIA did not abuse its discretion in denying the motion to reopen because its stated reasons for denial were not “arbitrary, irrational or contrary to law.” See Caruncho v. INS, 68 F.3d 356, 360 (9th Cir. 1995).

To the extent petitioners are raising new factors regarding them eligibility for cancellation of removal, this “new information” must be presented first to the BIA in a motion to reopen proceedings. See Ortiz v. INS, 179 F.3d 1148, 1152-53 (9th Cir. 1999).

The Clerk is directed to stay the mandate pending the resolution of Desta v. Ashcroft, No. 03-70477, and further order of this Court.

PETITION FOR REVIEW DENIED.