Beatrice Jacqueline Marc Moiny; Aurore Delphine Raphai Jenart 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.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
BEATRICE JACQUELINE MARC
MOINY; AURORE DELPHINE RAPHAI
JENART,
Petitioners,
v.
ERIC H. HOLDER Jr., Attorney General,
Respondent.
No. 05-73879
Agency Nos. A073-956-902
A073-949-700
MEMORANDUM *
BEATRICE JACQUELINE MARC
MOINY; AURORE DELPHINE RAFAJ
JENART,
Petitioners,
v.
ERIC H. HOLDER Jr., Attorney General,
Respondent.
No. 06-72293
Agency Nos. A073-956-902
A073-949-700
FILED
FEB 11 2010
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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The panel unanimously concludes this case is suitable for decision**
without oral argument. See Fed. R. App. P. 34(a)(2).
2
BEATRICE JACQUELINE MARC
MOINY; AURORE DELPHINE RAPHAI
JENART,
Petitioners,
v.
ERIC H. HOLDER Jr., Attorney General,
Respondent.
No. 07-72020
Agency Nos. A073-956-902
A073-949-700
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted February 3, 2010**
Pasadena, California
Before: KLEINFELD, WARDLAW and CALLAHAN, Circuit Judges.
In these consolidated petitions for review, Beatrice Moiny and her daughter
Aurore Jenart, natives and citizens of Belgium, petition for review of the Board of
Immigration Appeals’ orders denying their motions to reopen. We have
jurisdiction under 8 U.S.C. § 1252. We review the BIA’s denial of a motion to
reopen for an abuse of discretion, Ontiveros-Lopez v. INS., 213 F.3d 1121, 1124

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(9th Cir. 2000), and we review questions of this court’s jurisdiction de novo.
Didrickson v. U.S. Dept. of Interior, 982 F.2d 1332, 1337 (9th Cir. 1992).
The BIA did not abuse its discretion in denying petitioners’ motion to
reopen as untimely where petitioners filed their April 2005 motion to reopen over
two years after the BIA’s final order of removal, see 8 C.F.R. § 1003.2(c)(2)
(motion to reopen must be filed within ninety days of final order of removal), and
where petitioners did not show they acted with due diligence in discovering the
alleged deficiencies of their prior counsel. See Iturribarria v. INS, 321 F.3d 889,
897 (9th Cir. 2003) (time in which to file motion to reopen may be equitably tolled
“when petitioner is prevented from filing because of deception, fraud, or error, as
long as the petitioner acts with due diligence”).
The BIA denied petitioners' October 2005 and November 2006 motions to
reopen, and declined to exercise its discretion to sua sponte reopen proceedings. 8
C.F.R. § 1003.2. The BIA concluded that the petitioners did not provide any
material information that would exempt them from the time and numerical
limitations set forth in 8 C.F.R. § 1003.2, and did not demonstrate any exceptional
circumstances for the BIA to exercise its sua sponte authority over their untimely

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motions. We agree that petitioners' new arguments in the October 2005 and
November 2006 motions to reopen do not constitute material evidence of “changed
circumstances arising in the country of nationality” necessary for an exception to
time and number limitations for motions to reopen. 8 C.F.R. §§ 1003.2(c)(2)-(3).
Because Petitioners made no showing before the BIA that would exempt them
from the time and number limitations, we lack jurisdiction to review the BIA’s
decision not to invoke its sua sponte authority to reopen proceedings under 8
C.F.R. § 1003.2(a). See Ekimian v. INS, 303 F.3d 1153, 1159 (9th Cir. 2002).
Petitions for review DISMISSED in part; DENIED in part.

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