Jose Mairena v. Eric Holder, Jr., No. 09-72785 (9th Cir. 2011)

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FILED JAN 20 2011 NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U .S. C O U R T OF APPE ALS FOR THE NINTH CIRCUIT JOSE ORLANDO MAIRENA, Nos. 09-72785 09-74019 Petitioner, Agency No. A071-783-311 v. ERIC H. HOLDER, Jr., Attorney General, MEMORANDUM * Respondent. On Petitions for Review of an Order of the Board of Immigration Appeals and an Order of the Department of Homeland Security Submitted January 10, 2011 * Before: BEEZER, TALLMAN, and CALLAHAN, Circuit Judges. In these consolidated petitions for review, Jose Orlando Mairena, a native and citizen of Nicaragua, petitions for review of the Department of Homeland Security s order reinstating his 1995 deportation order under 8 U.S.C. § 1231(a)(5), and the Board of Immigration Appeals order affirming without * 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). opinion an immigration judge s ( IJ ) decision denying his motion to recalendar removal proceedings. We have jurisdiction under 8 U.S.C. § 1252. We review de novo questions of law, and review for abuse of discretion the denial of a motion to reopen. Mohammed v. Gonzales, 400 F.3d 785, 791-92 (9th Cir. 2005). We deny the petitions for review. Contrary to Mairena s contention, reinstatement of his 1995 deportation order was not precluded by 8 C.F.R. § 241.8(d), because Mairena did not show that he filed an application for adjustment of status under the Nicaraguan Adjustment and Central American Relief Act of 1997 ( NACARA ) before April 1, 2000. See NACARA, Pub. L. No. 105-100, § 202(a)(1)(A), 111 Stat. 2160, 2193 (1997). The IJ properly construed Mairena s motion to recalendar as a motion to reopen, and did not abuse her discretion in denying that motion as untimely where Mairena filed the motion fourteen years after his in absentia deportation order was entered, see 8 C.F.R. § 1003.23(b)(4)(iii)(A)(1), and did not assert that he was entitled to equitable tolling of the filing deadline, see Iturribarria v. INS, 321 F.3d 889, 897 (9th Cir. 2003). PETITIONS FOR REVIEW DENIED. 2 09-72785, 09-74019

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