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 2022-02

Alejandro Pantoja-Hernandez v. Merrick Garland ( 2022 )


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  •                               NOT FOR PUBLICATION                        FILED
UNITED STATES COURT OF APPEALS                        FEB 24 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ALEJANDRO PANTOJA-HERNANDEZ,                    No.    19-72933
Petitioner,                     Agency No. A075-101-888
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted February 15, 2022**
Before:      FERNANDEZ, TASHIMA, and FRIEDLAND, Circuit Judges.
Alejandro Pantoja-Hernandez, a native and citizen of Mexico, petitions for
review of the Board of Immigration Appeals’ order dismissing his appeal from an
immigration judge’s decision denying his motion to reopen deportation
proceedings. Our jurisdiction is governed by
    8 U.S.C. § 1252
    . We review for
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 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). We review de novo claims of due process violations
in immigration proceedings. Simeonov v. Ashcroft,
    371 F.3d 532
    , 535 (9th Cir.
2004). We deny in part and dismiss in part the petition for review.
The agency did not abuse its discretion in denying Pantoja-Hernandez’s
motion to reopen as untimely where the motion was filed over twenty-two years
after the final agency decision, see 8 U.S.C. § 1229a(c)(7)(C)(i);
    8 C.F.R. § 1003.23
    (b)(1), and where Pantoja-Hernandez failed to establish the diligence
required for equitable tolling of the filing deadline, see Avagyan v. Holder,
    646 F.3d 672
    , 679 (9th Cir. 2011) (factors relevant to the diligence inquiry include
“whether petitioner took reasonable steps to investigate the suspected fraud or
error”).
To the extent Pantoja-Hernandez contends the agency violated his right to
due process by failing to provide a transcript of his 1997 hearing, the contention
fails because he did not demonstrate prejudice, where Pantoja-Hernandez does not
argue that the absence of a transcript affected his ability to exercise due diligence.
See Lata v. INS,
    204 F.3d 1241
    , 1246 (9th Cir. 2000) (substantial prejudice is
required to prevail on a due process claim). In light of this disposition, Pantoja-
Hernandez’s request for remand is denied.
We lack jurisdiction to review the agency’s denial of sua sponte reopening
2                                    19-72933
where Pantoja-Hernandez does not raise a legal or constitutional error to invoke
our jurisdiction. See Bonilla v. Lynch,
    840 F.3d 575
    , 588 (9th Cir. 2016) (the court
retains jurisdiction to review the denial of sua sponte reopening “for the limited
purpose of reviewing the reasoning behind the decisions for legal or constitutional
error”).
PETITION FOR REVIEW DENIED in part; DISMISSED in part.
3                                    19-72933