SALVADOR NAVARRO CALUMNO, Jr. v. ERIC H. HOLDER, Jr., Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
SALVADOR NAVARRO CALUMNO,
Jr.,
Petitioner,
v.
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
No. 07-70442
Agency No. A070-818-406
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted January 21, 2015**
Before: CANBY, GOULD, and N.R. SMITH, Circuit Judges.
Salvador Navarro Calumno, Jr., a native and citizen of the Philippines,
petitions for review of the Board of Immigration Appeals’ (“BIA”) order denying
his motion to reopen deportation proceedings conducted in absentia. Our
jurisdiction is governed by 8 U.S.C. § 1252. We review for abuse of discretion the
FILED
JAN 30 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).

-- 1 of 3 --

denial of a motion to reopen. Mohammed v. Gonzales, 400 F.3d 785, 791 (9th Cir.
2005). We deny in part and dismiss in part the petition for review.
The BIA did not abuse its discretion in denying Calumno’s untimely motion
to reopen to apply for adjustment of status, where the motion was filed more than
10 years after the September 30, 1996, deadline. See 8 C.F.R. § 1003.2(c)(2) (a
motion to reopen deportation or exclusion proceedings must be filed no later than
90 days after a final order or on or before September 30, 1996, whichever is later);
Matter of M-S-, 22 I. & N. Dec. 349, 356-57 (BIA 1998) (a motion to reopen an in
absentia order in order to apply for adjustment of status is subject to requirements
of 8 C.F.R. § 1003.2(c)).
To the extent that Calumno challenges the BIA’s 2004 order dismissing his
appeal from an immigration judge’s order determining that Calumno received
proper notice of his hearing, we lack jurisdiction because this petition is not timely
as to that order. See Stone v. INS, 514 U.S. 386, 405 (1995).
We also lack jurisdiction to consider Calumno’s contention that the BIA
should have considered invoking its sua sponte authority to reopen proceedings.
See Mejia-Hernandez v. Holder, 633 F.3d 818, 823-24 (9th Cir. 2011) (this court
lacks jurisdiction to review contentions that the BIA failed to reopen sua sponte).
07-70442 2

-- 2 of 3 --

This dismissal is without prejudice to petitioner’s seeking prosecutorial
discretion or deferred action from the Department of Homeland Security. See
Reno v. American-Arab Anti-Discrimination Committee (AADC), 525 U.S. 471,
483-85 (1999) (stating that prosecutorial discretion by the agency can be granted at
any stage, including after the conclusion of judicial review).
PETITION FOR REVIEW DENIED in part; DISMISSED in part.
07-70442 3

-- 3 of 3 --