Rojas v. Holder

U.S. Court of Appeals for the Ninth Circuit
Rojas v. Holder, 461 F. App'x 607 (9th Cir. 2011)

Rojas v. Holder

Opinion

MEMORANDUM ** and ORDER

Crispin Rojas and Ma De Lourdes Rojas, natives and citizens of Mexico, petition for review of an order of the Board of Immigration Appeals (“BIA”) denying their motion to reopen. We have jurisdiction under 8 U.S.C. § 1252. We review the denial of a motion to reopen for an abuse of discretion. Celis-Castellano v. Ashcroft, 298 F.3d 888, 890 (9th Cir. 2002). Questions of law are reviewed de novo. Granados-Oseguera v. Mukasey, 546 F.3d 1011, 1014 (9th Cir. 2008) (per curiam).

The BIA did not abuse its discretion in denying the motion to reopen. Even with the benefit of the 60-day departure period, Petitioners were statutorily ineligible for relief because they failed to depart the United States before their voluntary departure period expired. 8 U.S.C. § 1229c(d)(l); see Granados-Oseguera, 546 F.3d at 1016 (holding that the statutory bar on relief precluded the petitioner from relying on ineffective assistance of counsel as an “exceptional circumstance” excusing a failure to depart within the required time).

Petitioners’ prior petition cannot be considered a request for a stay. See Garcia v. Ashcroft, 368 F.3d 1157, 1159 (9th Cir. 2004) (order) (“Unlike a motion for stay of removal, a petition for review is not similar to a motion for stay of voluntary departure, nor are the standards governing the two requests for relief.”). While we must afford pro se alien submissions a liberal construction, Sembiring v. Gonzales, 499 F.3d 981, 990 (9th Cir. 2007), a petitioner must give us something to liberally construe in the first instance. Petitioners failed to do so. Moreover, there is no automatic stay of voluntary departure while an alien pursues a petition for review before this court. Desta v. Ashcroft, 365 F.3d 741, 746 (9th Cir. 2004) (citing Zazue-ta-Carrillo v. Ashcroft, 322 F.3d 1166, 1172 (9th Cir. 2003)).

*608 PETITION FOR REVIEW DENIED. 1

**

This disposition is not appropriate for publication and is not precedent except as provided by 9 th Cir. R. 36-3.

1

. Petitioners’ motion for judicial notice is granted.

Reference

Full Case Name
Crispin ROJAS and Ma De Lourdes Rojas, Petitioners, v. Eric H. HOLDER Jr., Attorney General, Respondent
Status
Unpublished