Gilmar Humberto Torres; Luz Aleyda Garcia v. ERIC H. HOLDER, Jr., Attorney General

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
The panel unanimously concludes this case is suitable for decision**
without oral argument. See Fed. R. App. P. 34(a)(2).
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
GILMAR HUMBERTO TORRES; LUZ
ALEYDA GARCIA,
Petitioners,
v.
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
No. 09-73067
Agency Nos. A079-535-914
A079-535-915
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted April 17, 2012**
Before: LEAVY, PAEZ, and BEA, Circuit Judges.
Gilmar Humberto Torres and Luz Aleyda Garcia, natives and citizens of
Colombia, petition pro se for review of the Board of Immigration Appeals’
(“BIA”) order denying their motion to reopen. Our jurisdiction is governed by 8
FILED
APR 24 2012
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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09-73067 2
U.S.C. § 1252. We review for an abuse of discretion, Malty v. Ashcroft, 381 F.3d
942, 945 (9th Cir. 2004), and we deny in part and dismiss in part the petition for
review.
The BIA did not abuse its discretion in denying petitioners’ motion to
reopen to apply for asylum and withholding of removal as untimely because the
motion was filed over five years after the BIA’s final order, see 8 C.F.R. §
1003.2(c)(2), and petitioners failed to present material evidence of changed
circumstances in Colombia to qualify for the regulatory exception to the time
limitation for filing motions to reopen, see 8 C.F.R. § 1003.2(c)(3)(ii); see also
Najmabadi v. Holder, 597 F.3d 983, 991 (9th Cir. 2010).
The BIA also did not abuse its discretion in denying petitioners’ motion to
reopen to apply for protection under the Convention Against Torture because it
considered the evidence submitted and acted within its broad discretion in
determining petitioners did not demonstrate prima facie eligibility for relief. See
INS v. Abudu, 485 U.S. 94, 104 (1988) (the BIA may deny a motion to reopen for
failure to establish a prima facie case for the underlying relief sought).

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09-73067 3
Finally, we lack jurisdiction to review the BIA’s decision not to exercise its
sua sponte power to reopen proceedings. See Mejia-Hernandez v. Holder, 633
F.3d 818, 823-24 (9th Cir. 2011).
PETITION FOR REVIEW DENIED in part; DISMISSED in part.

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