Jose Gomez-Rivera v. Eric Holder, Jr. , 594 F. App'x 436 ( 2015 )

FILED
NOT FOR PUBLICATION MAR 02 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOSE GOMEZ-RIVERA, No. 12-72970
Petitioner, Agency No. A091-815-342
v.
MEMORANDUM*
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted February 17, 2015**
Before: O’SCANNLAIN, LEAVY, and FERNANDEZ, Circuit Judges.
Jose Gomez-Rivera, a native and citizen of Mexico, petitions for review of
the Board of Immigration Appeals’ (“BIA”) order denying his motion to reopen
removal proceedings. We have jurisdiction under 8 U.S.C. § 1252. We review for
*
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).
abuse of discretion the denial of a motion to reopen, Mohammed v. Gonzales, 400
F.3d 785, 791 (9th Cir. 2005), and we deny the petition for review.
The BIA did not abuse its discretion in denying Gomez-Rivera’s motion to
reopen as untimely, where he filed the motion more than six years after his final
order of removal, see 8 C.F.R. § 1003.2(c)(2) (a motion to reopen must be filed
within 90 days of a final order of removal), and has not established the due
diligence required for equitable tolling of the filing deadline, see Avagyan v.
Holder, 646 F.3d 672, 679-80 (9th Cir. 2011) (equitable tolling is available to an
alien who is prevented from timely filing a motion to reopen due to deception,
fraud or error, as long as petitioner exercises due diligence in discovering such
circumstances).
In light of our disposition, we do not reach Gomez-Rivera’s remaining
contentions.
PETITION FOR REVIEW DENIED.
2 12-72970