Martinez-Garcia

MEMORANDUM

Petitioner Jonathan E. Martinez-Garcia sought relief from removal before an immigration judge. The immigration judge denied relief other than permission to depart voluntarily; on appeal, the Board of Immigration Appeals (“BIA”) affirmed without opinion. This court denied Petitioner’s timely petition for review. Martinez-Garcia v. Ashcroft, 108 Fed.Appx. 468 (9th Cir.2004) (unpublished decision).

Petitioner failed to appear for his scheduled departure. Instead, he applied for relief under the Nicaraguan Adjustment and Central American Relief Act (“NA-CARA”), Pub.L. No. 105-100, 111 Stat. 2160 (1997); he filed a motion to reopen with the BIA; and he filed a habeas corpus petition, pursuant to 28 U.S.C. § 2241 , in federal district court. Petitioner sought a stay of removal until the BIA could resolve the pending NACARA application and motion to reopen. After enactment of the REAL ID Act of 2005, Pub.L. No. 109-13, 119 Stat. 231, the district court transferred the habeas case to this court pursuant to section 106(c) of that Act.

Thereafter, the BIA denied the motion to reopen as untimely because it was filed two years after issuance of the final order of removal, rather…