Reyes Rivas v. Ashcroft

MEMORANDUM **

Jose de Jesus Reyes Rivas and his wife Leticia Reyes-Gonzalez, natives and citizens of Mexico, petition for review of the Board of Immigration Appeals’ (“BIA”) order denying their motion to reopen removal proceedings. To the extent we have jurisdiction, it is conferred by 8 U.S.C. § 1252 . We review for abuse of discretion the denial of a motion to reopen, but review purely legal questions de novo. Singh v. Ashcroft, 367 F.3d 1182, 1185 (9th Cir.2004). We dismiss in part and deny in part the petition for review.

The BIA did not abuse its discretion in denying as untimely petitioners’ motion to reopen. See 8 C.F.R. § 3.2 (c)(2) (imposing a ninety-day deadline after a final administrative decision to file a motion to reopen); 8 C.F.R. § 3.8 (a) (requiring submission of a fee with a motion to reopen).

Assuming we have jurisdiction to consider petitioners’ contentions concerning equitable tolling, including ineffective assistance of counsel, the BIA did not abuse its discretion in determining that tolling was *895 not warranted. See Iturribarria v. INS, 321 F.3d 889, 902 (9th Cir.2003).

We lack jurisdiction to consider whether the BIA should have exercised its sua…