FILED
                           NOT FOR PUBLICATION                                DEC 23 2009

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT

JONATHAN E. MARTINEZ-GARCIA,                     No. 05-75457

             Petitioner,                         Agency No. A074-322-464

  v.
                                                 MEMORANDUM *
ERIC H. HOLDER JR., Attorney General,

             Respondent.



                     On Petition for Review of an Order of the
                         Board of Immigration Appeals

                     Argued and Submitted December 9, 2009
                            San Francisco, California

Before: COWEN, ** GRABER, and BYBEE, Circuit Judges.

       Petitioner Jonathan E. Martinez-Garcia sought relief from removal before an

immigration judge. The immigration judge denied relief other than permission to

depart voluntarily; on appeal, the Board of Immigration Appeals ("BIA") affirmed

without opinion. This court denied Petitioner’s timely petition for review.


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
       **
             The Honorable Robert E. Cowen, Senior United States Circuit Judge
for the Third Circuit, sitting by designation.
Martinez-Garcia v. Ashcroft, 108 F. App’x 463 (9th Cir. 2004) (unpublished

decision).

      Petitioner failed to appear for his scheduled departure. Instead, he applied

for relief under the Nicaraguan Adjustment and Central American Relief Act

("NACARA"), Pub. L. No. 105-100, 111 Stat. 2160 (1997); he filed a motion to

reopen with the BIA; and he filed a habeas corpus petition, pursuant to 28 U.S.C.

§ 2241, in federal district court. Petitioner sought a stay of removal until the BIA

could resolve the pending NACARA application and motion to reopen. After

enactment of the REAL ID Act of 2005, Pub. L. No. 109-13, 119 Stat. 231, the

district court transferred the habeas case to this court pursuant to section 106(c) of

that Act.

      Thereafter, the BIA denied the motion to reopen as untimely because it was

filed two years after issuance of the final order of removal, rather than within

ninety days; and Citizenship and Immigration Services denied the NACARA

application because Petitioner was subject to an outstanding final order of removal.

We, therefore, must dismiss the petition as moot.

      Petition DISMISSED.




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