Oscar Enrique Martinez; Lorena Barbara Moyo- Casarrubias 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NOT FOR PUBLICATION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
OSCAR ENRIQUE MARTINEZ;
LORENA BARBARA MOYO-
CASARRUBIAS,
Petitioners,
v.
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
No. 08-70210
Agency Nos. A079-522-687
A079-522-688
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted October 19, 2010**
Before: O’SCANNLAIN, LEAVY, and TALLMAN, Circuit Judges.
Oscar Enrique Martinez and Lorena Barbara Moyo-Casarrubias, natives and
citizens of Mexico, petition for review of the Board of Immigration Appeals’
(“BIA”) order denying their motion to reopen. Our jurisdiction is governed by 8
FILED
NOV 01 2010
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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08-70210 2
U.S.C. § 1252. We review for abuse of discretion the denial of a motion to reopen,
and review de novo due process claims. Iturribarria v. INS, 321 F.3d 889, 894
(9th Cir. 2003). 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 as untimely because they did not file the motion within 90 days of the
BIA’s final order of removal, see 8 C.F.R. § 1003.2(c)(2), and they failed to
demonstrate material changed circumstances in Mexico to qualify for the
regulatory exception to the time limit, see 8 C.F.R. § 1003.2(c)(3)(ii); see also
Toufighi v. Mukasey, 538 F.3d 988, 996-97 (9th Cir. 2008) (evidence must
demonstrate prima facie eligibility for relief in order to reopen proceedings based
on changed circumstances). Moreover, the denial of petitioners’ motion to reopen
to apply for asylum, withholding of removal and CAT relief did not violate due
process. See Lata v. INS, 204 F.3d 1241, 1246 (9th Cir. 2000) (requiring error for
a due process violation).
We lack jurisdiction to review the BIA’s decision not to invoke its sua
sponte authority to reopen proceedings. See Ekimian v. INS, 303 F.3d 1153, 1159-
60 (9th Cir. 2002). Petitioners’ contention that the BIA’s violated their due
process rights by failing to consider evidence of hardship is not supported by the

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record and does not amount to a colorable due process claim. See Martinez-Rosas
v. Gonzales, 424 F.3d 926, 930 (9th Cir. 2005).
PETITION FOR REVIEW DENIED in part; DISMISSED in part.

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