Victor Calderon v. Jefferson Sessions , 702 F. App'x 657 ( 2017 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS NOV 21 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
VICTOR F. CALDERON, No. 15-73310
Petitioner, Agency No. A095-006-539
v.
MEMORANDUM*
JEFFERSON B. SESSIONS III, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted November 15, 2017**
Before: CANBY, TROTT, and GRABER, Circuit Judges.
Victor F. Calderon, a native and citizen of El Salvador, 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
abuse of discretion the denial of a motion to reopen. Najmabadi v. Holder, 597
F.3d 983, 986 (9th Cir. 2010). We deny the petition for review.
*
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).
The BIA did not abuse its discretion in denying Calderon’s motion to reopen
as untimely, where Calderon filed the motion more than two years after his final
administrative order of removal, he failed to establish the due diligence required
for equitable tolling of the filing deadline, and he did not present sufficient
evidence to qualify for any regulatory exception to the filing deadline. See 8 C.F.R.
§ 1003.2(c)(2)-(3); Avagyan v. Holder, 646 F.3d 672, 679 (9th Cir. 2011)
(equitable tolling is available to a petitioner who is prevented from timely filing a
motion to reopen due to deception, fraud or error, as long as the petitioner
exercises due diligence in discovering such circumstances); see also Carrillo-
Gonzalez v. INS, 353 F.3d 1077, 1079 (9th Cir. 2003) (statements by counsel are
not evidence).
We do not consider the extra-record information discussed in Calderon’s
opening brief because the court’s review is normally limited to the administrative
record. See 8 U.S.C. § 1252(b)(4)(A) (judicial review is limited to the
administrative record); Dent v. Holder, 627 F.3d 365, 371 (9th Cir. 2010) (stating
standard for review of out-of-record evidence).
PETITION FOR REVIEW DENIED.
2 15-73310