FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

DIEGO ANTIGUA DELA CRUZ, JR.; 

Nos. 05-76564 NIEVA ESPIRITU DELA CRUZ,

06-75285 Petitioners,

Agency Nos.

v.  A77-835-221

MICHAEL B. MUKASEY,* Attorney A77-835-223

General, OPINION Respondent. 

On Petitions for Review of Orders of the

Board of Immigration Appeals

Submitted June 11, 2008**

San Francisco, California

Filed July 9, 2008

Before: A. Wallace Tashima and Susan P. Graber,

Circuit Judges, and Robert J. Timlin,*** District Judge.

Per Curiam Opinion;

Concurrence by Judge Graber

*Michael B. Mukasey is substituted for his predecessor, Alberto R.

Gonzales, as Attorney General of the United States, pursuant to Fed. R.

App. P. 43(c)(2). 

**The panel unanimously finds this case suitable for decision without

oral argument. Fed. R. App. P. 34(a)(2). 

***The Honorable Robert J. Timlin, United States District Judge for the

Central District of California, sitting by designation. 

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COUNSEL

Ted Laguatan, Law Offices of Ted Laguatan and Associates,

Daly City, California, for the petitioners. 

Don G. Scroggin and Robert N. Markle, Office of Immigration Litigation, Civil Division, United States Department of

Justice, Washington, D.C., for the respondent. 

OPINION

PER CURIAM: 

In Stone v. INS, 514 U.S. 386 (1995), the Supreme Court

held that the filing of a motion to reopen or reconsider before

DELA CRUZ v. MUKASEY 8347
the Board of Immigration Appeals (“BIA”) does not toll the

statutory time limit for filing a petition for review in the

courts of appeals. Today, we hold that the reverse is also true:

The filing of a petition for review in this court does not toll

the statutory time limit for filing a motion to reopen before

the BIA. 

Petitioners Diego Antigua Dela Cruz, Jr., and his wife,

Nieva Espiritu Dela Cruz, are citizens of the Philippines. In

1984, they legally entered the United States on the authority

of six-month travel visas. They never left. Petitioners’ youngest child was born in the United States on December 17,

1984, and she therefore is a United States citizen. 

In 2000, the government issued to Petitioners a notice to

appear. At a hearing before an immigration judge (“IJ”), Petitioners admitted removability but sought relief in the form of

cancellation of removal and, alternatively, voluntary departure. The IJ denied cancellation of removal. The IJ held that

Petitioners met all the requirements for cancellation of

removal except a showing of hardship, because the aspects of

hardship asserted by Petitioners were common to almost

every cancellation of removal application. But the IJ granted

voluntary departure. 

On October 27, 2005, the BIA affirmed the IJ’s decision in

a one-judge unpublished opinion. Petitioners filed a timely

petition for review in this court. Less than two months later,

Petitioners’ daughter turned 21 years old. She then filed a

petition for legal resident status for her parents under 8 U.S.C.

§ 1151(b). That petition was provisionally approved by Immigration and Customs Enforcement. 

Because of that changed circumstance, Petitioners filed a

motion to reopen with the BIA on June 5, 2006. The BIA

denied the motion to reopen on the ground that the motion

was untimely. Petitioners filed a timely motion to reconsider.

The BIA denied that motion because “the pending petition for

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review with the Ninth Circuit did not toll the time limitation

for filing a motion to reopen. Consequently, there is no error

of fact or law in our [previous] decision, denying the motion

to reopen as untimely, and reconsideration is not warranted.”

Petitioners filed a timely petition for review from the BIA’s

order denying the motion to reconsider. We consolidated the

two petitions. 8 U.S.C. § 1252(b)(6). 

[1] Petitioners’ petition for review of the order of removal

raises two issues that we have rejected previously. We lack

jurisdiction over the IJ’s “exceptional and extremely unusual

hardship” determination. Martinez-Rosas v. Gonzales, 424

F.3d 926, 930 (9th Cir. 2005); Romero-Torres v. Ashcroft,

327 F.3d 887, 888 (9th Cir. 2003). Further, a one-judge opinion by the BIA does not violate Petitioners’ due process

rights. Falcon Carriche v. Ashcroft, 350 F.3d 845, 850-51

(9th Cir. 2003). 

Petitioners’ petition for review of the BIA’s order denying

their motion to reconsider raises the purely legal question

addressed below. We review de novo the BIA’s determination

of purely legal questions. Cano-Merida v. INS, 311 F.3d 960,

964 (9th Cir. 2002). 

[2] “Except as provided in [provisions unrelated to this

appeal], the motion to reopen shall be filed within 90 days of

the date of entry of a final administrative order of removal.”

8 U.S.C. § 1229a(c)(7)(C)(i). Petitioners filed their motion to

reopen more than 90 days after the BIA’s decision ordering

Petitioners removed. The motion was thus untimely.1

1Petitioners filed a petition for review from the BIA’s denial of their

motion to reconsider, not the BIA’s denial of their motion to reopen. But

that fact does not change the analysis here. In its order denying the motion

to reconsider, the BIA held that it did not make an error of law in its order

denying the motion to reopen as untimely. If Petitioners are correct that,

as a matter of law, their motion to reopen was timely, then the BIA erred

in both of its orders: first, by holding that Petitioners’ motion to reopen

was untimely and, second, by holding that it did not make an error of law

in its previous order. 

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[3] If, however, the statutory time limit for filing a motion

to reopen is tolled while a petition for review is pending in

this court, then the motion was timely.2 Petitioners argue that

tolling applies because there was no “final administrative

order of removal,” id., after Petitioners filed a petition for

review with this court. 

[4] In Stone, 514 U.S. at 405-06, the Supreme Court held

that the filing of a motion to reopen or to reconsider with the

BIA does not toll the statutory time limit for filing a petition

for review. The Court held that a removal order is “final when

issued,” and “[i]ts finality is not affected by the subsequent

filing of a motion to reconsider.” Id. at 405. That conclusion

stemmed from the Immigration and Nationality Act’s consolidation provision: “When a petitioner seeks review of an order

[of removal] under this section, any review sought of a

motion to reopen or reconsider the order shall be consolidated

with the review of the order.” 8 U.S.C. § 1105a(a)(6) (1995),

recodified at 8 U.S.C. § 1252(b)(6). The consolidation provision contemplates two separate petitions for review: one from

the BIA’s decision ordering a petitioner removed and another

from the BIA’s decision denying a motion to reopen or reconsider. Stone, 514 U.S. at 394. The Court gave meaning to that

provision by holding that the BIA’s removal order remains

final, even if the petitioner files a motion to reopen or reconsider. Id. at 394-95. The Court concluded that Congress “envisioned two separate petitions filed to review two separate

final orders.” Id. at 405 (emphasis added). Petitioners’

contention—that a removal order’s finality is affected by the

filing of a petition for review in the court of appeals—is irreconcilable with that statutory scheme.3

2The type of tolling asserted by Petitioners is statutory tolling, not equitable tolling. There is no basis for applying equitable tolling here. See

Socop-Gonzalez v. INS, 272 F.3d 1176, 1193 (9th Cir. 2001) (en banc)

(stating the standard for equitable tolling). 

3The Court’s recent opinion in Dada v. Mukasey, 128 S. Ct. 2307

(2008), which interprets the statutory provisions concerning voluntary

departure, does not detract from the Stone analysis. 

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[5] We therefore join our sister circuits and hold that the

pendency of a petition for review of an order of removal does

not toll the statutory time limit for the filing of a motion to

reopen with the BIA. Zhao Quan Chen v. Gonzales, 492 F.3d

153, 155 (2d Cir. 2007) (per curiam); Randhawa v. Gonzales,

474 F.3d 918, 922 (6th Cir. 2007); accord In re Susma, 22 I.

& N. Dec. 947, 948 (B.I.A. 1999) (en banc) (per curiam).

In No. 05-76564, the petition for review is DISMISSED in

part and DENIED in part. In No. 06-75285, the petition for

review is DENIED. 

GRABER, Circuit Judge, with whom TASHIMA, Circuit

Judge, and TIMLIN, District Judge, join,1 concurring: 

I concur in our per curiam opinion. As a matter of law, the

filing of a petition for review in this court does not extend the

time period during which an alien may file a motion to reopen

with the BIA. I write separately to point out that the BIA may

reopen a proceeding, sua sponte, at any time. 8 C.F.R.

§ 1003.2(a). I encourage the BIA to consider whether this

case warrants a discretionary exercise of that authority. 

Petitioners are in their 50s. All three of their children, and

their children’s families, legally reside in the United States.

For more than 20 years, Petitioners have been productive

members of society: They have never been arrested or

charged with a crime; they have never been on welfare; they

have successfully raised three children; and they have held

full-time jobs and paid taxes. In fact, the government agrees

with the immigration judge that Petitioners “are extremely

deserving people for a favorable exercise of discretion.” 

1Even though all members of the panel agree with the sentiments stated

here, we recognize that our views are dicta and, therefore, do not include

them in the precedential opinion. 

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The BIA issued its decision just six weeks before Petitioners’ daughter turned 21 years old and was able to petition for

adjustment of status for her parents. That petition was provisionally granted. If the BIA had granted Petitioners’ motion

to reopen (or if it had issued its original decision later), Petitioners likely would have been able to avoid removal. As it is,

upon our denial of the petitions for review, the stay of

removal will lift automatically, and the government will be

free to remove Petitioners, who then would be ineligible for

reentry for several years. In the circumstances, as the immigration judge put it, Petitioners “are extremely deserving people for a favorable exercise of discretion.”

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