YONI FEDERICO GRAMAJO MONTERROSO and RUTH A. RODRIGUEZ v. LORETTA E. LYNCH, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
YONI FEDERICO GRAMAJO
MONTERROSO and RUTH A.
RODRIGUEZ,
Petitioners,
v.
LORETTA E. LYNCH, Attorney General,
Respondent.
No. 13-72497
Agency Nos. A070-857-782
A099-054-660
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted November 18, 2015**
Before: TASHIMA, OWENS, and FRIEDLAND, Circuit Judges.
Yoni Federico Gramajo Monterroso and Ruth A. Rodriguez, natives and
citizens of Guatemala, petition pro se for review of the Board of Immigration
Appeals’ (“BIA”) order denying their motion to reopen removal proceedings. Our
FILED
NOV 24 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* 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).

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jurisdiction is governed by 8 U.S.C. § 1252. We review for abuse of discretion the
denial of a motion to reopen and review de novo constitutional claims. Mohammed
v. Gonzales, 400 F.3d 785, 791-92 (9th Cir. 2005). We deny in part and dismiss in
part the petition for review.
The BIA did not abuse its discretion in denying as untimely petitioners’
motion to reopen to apply for asylum and related relief, where petitioners filed the
motion more than two years after their final orders of removal, see 8 C.F.R.
§ 1003.2(c)(2) (a motion to reopen must be filed within 90 days of a final order of
removal), and failed to establish materially changed country conditions to qualify
for the regulatory exception to the filing deadline, see id. § 1003.2(c)(3)(ii).
Nor did the BIA abuse its discretion in denying petitioners’ motion based on
ineffective assistance of counsel, where petitioners failed to comply with the
threshold requirements of Matter of Lozada, 19 I. & N. Dec. 637 (BIA 1988), and
the alleged ineffective assistance is not plain on the face of the administrative
record. See Reyes v. Ashcroft, 358 F.3d 592, 596-98 (9th Cir. 2004) (no abuse of
discretion where alien failed to comply with Lozada and ineffectiveness was not
plain on face of the record).
13-72497 2

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Accordingly, the BIA did not violate due process by denying the motion.
See Lata v. INS, 204 F.3d 1241, 1246 (9th Cir. 2000) (to prevail on a due process
challenge, an alien must show error and prejudice).
We lack jurisdiction to consider petitioners’ challenges to the agency’s
underlying orders denying relief from removal because this petition is not timely as
to those orders. See Stone v. INS, 514 U.S. 386, 405 (1995).
To the extent petitioners challenge the BIA’s decision not to exercise its sua
sponte authority to reopen removal proceedings and to the extent Rodriguez
contends she is eligible for prosecutorial discretion, we lack jurisdiction to
consider those contentions. See Mejia-Hernandez v. Holder, 633 F.3d 818, 823-24
(9th Cir. 2011); Vilchiz-Soto v. Holder, 688 F.3d 642, 644 (9th Cir. 2012) (order).
We construe petitioners’ October 19, 2015, filing as a motion for leave to
file a supplemental brief, and grant the motion.
The government’s September 17, 2015, motion is denied as moot.
PETITION FOR REVIEW DENIED in part; DISMISSED in part.
13-72497 3

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