Duran-Montoya

MEMORANDUM **

Valentin Duran-Montoya, and his two children Elizabeth Martinez Yanez and Jose Alejandro Martinez Yanez, natives and citizens of Mexico, petition pro se for review of the Board of Immigration Appeals’ (“BIA”) order denying as untimely their motion to reconsider its order dismissing their appeal. 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 reconsider. See Oh v. Gonzales, 406 F.3d 611, 612 (9th Cir.2005). We dismiss in part and grant in part the petition for review.

To the extent the petitioners challenge the BIA’s underlying order dismissing their appeal from the immigration judge’s decision, we lack jurisdiction because the instant petition for review is not timely as to that order. See Martinez-Serrano v. INS, 94 F.3d 1256, 1258 (9th Cir.1996).

Although the petitioners’ motion was titled “Motion to Reconsider,” the motion should have been construed as a motion to reopen because the underlying purpose of the motion was to present the BIA with additional facts and evidence. See Iturribarria v. INS, 321 F.3d 889, 895-97 (9th Cir.2003) (finding the BIA improperly construed a…