Walfre Ricardo Martinez Pinto; Jessi Floridalma Villatoro-Gonzalez 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NOT FOR PUBLICATION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
WALFRE RICARDO MARTINEZ
PINTO; JESSI FLORIDALMA
VILLATORO-GONZALEZ,
Petitioners,
v.
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
No. 11-71505
Agency Nos. A072-776-206
A070-810-279
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted July 24, 2013**
Before: ALARCÓN, CLIFTON, and CALLAHAN, Circuit Judges.
Walfre Ricardo Martinez Pinto and Jessi Floridalma Villatoro-Gonzalez,
natives and citizens of Guatemala, petition for review of the Board of Immigration
Appeals’ (“BIA”) order denying their motion to reopen removal proceedings. Our
FILED
JUL 30 2013
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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11-71505 2
jurisdiction is governed by 8 U.S.C. § 1252. We review for abuse of discretion the
BIA’s denial of a motion to reopen. Najmabadi v. Holder, 597 F.3d 983, 986 (9th
Cir. 2010). We deny in part and dismiss in part the petition for review.
The BIA did not abuse its discretion by denying petitioners’ motion to
reopen as untimely, see 8 C.F.R. § 1003.2(c)(2), and petitioners failed to produce
new, previously unavailable, material evidence that would warrant reopening, see
Najmabadi v. Holder, 597 F.3d 983, 990 (9th Cir. 2010). We reject petitioners’
contention that the BIA failed to consider the expert report. See Almaghzar v.
Gonzales, 457 F.3d 915, 922 (9th Cir. 2006).
We reject petitioners’ contention that the BIA ignored their argument that it
was error to not adjudicate Martinez Pinto’s claim under the Convention Against
Torture (“CAT”) when it decided his direct appeal, in light of our July 12, 2010,
decision in which we noted that the BIA considered his eligibility for CAT relief.
We lack jurisdiction to review the BIA’s decision not to exercise its sua
sponte authority to reopen proceedings. See Mejia-Hernandez v. Holder, 633 F.3d
818, 823-24 (9th Cir. 2011). The BIA’s refusal to exercise its sua sponte authority
to reopen proceedings with respect to Martinez Pinto’s grant of voluntary departure
was not based on any factual errors.
PETITION FOR REVIEW DENIED in part; DISMISSED in part.

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