Herrera

MEMORANDUM *

Petitioners Lidio Herrera-Hernandez (“Herrera”) and Soledad Tenorio-Bravo (“Tenorio”), natives and citizens of Mexico, petition for review of the Board of Immigration Appeals’ (“BIA”) denial of their petition to reopen as untimely. We dismiss the petition for lack of jurisdiction.

A motion to reopen must be filed within ninety days after the date of the BIA’s final decision. 8 C.F.R. § 1003.2 (c)(2). The BIA “may at any time reopen or reconsider on its own motion any case in which it has rendered a decision,” 8 C.F.R. § 1003.2 (a), and will do so in “exceptional situations.” In re J-J- 21 I. & N. Dec. 976, 984 (BIA 1997). Petitioners allege that here, ineffective assistance of counsel constituted an exceptional situation that should excuse their tardy filing. However, petitioners did not raise this claim before the BIA, and even if they did, we would not have jurisdiction to review the denial of sua sponte reopening. See Malty v. Ashcroft, 381 F.3d 942 , 945 n. 1 (9th Cir. 2004); Ekimian v. INS, 303 F.3d 1153, 1159-60 (9th Cir 12002).

An alien who argues ineffective assistance of counsel must exhaust his or her administrative remedies by first presenting the issue…