Julio Benitez v. Loretta E. Lynch , 637 F. App'x 459 ( 2016 )

FILED
NOT FOR PUBLICATION MAR 01 2016
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JULIO CESAR BENITEZ, No. 14-71187
Petitioner, Agency No. A026-201-480
v.
MEMORANDUM*
LORETTA E. LYNCH, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted February 24, 2016**
Before: LEAVY, FERNANDEZ, and RAWLINSON, Circuit Judges.
Julio Cesar Benitez, a native and citizen of El Salvador, petitions for review
of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeals from
an immigration judge’s (“IJ”) decisions denying his motions to reopen and
reconsider. We have jurisdiction under 8 U.S.C. § 1252. We review for abuse of
*
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).
discretion the denial of a motion to reopen or reconsider. Mohammed v. Gonzales,
400 F.3d 785, 791 (9th Cir. 2005). We deny the petition for review.
The agency did not abuse its discretion by denying Benitez’s motion to
reopen as untimely, where the motion was filed more than 21 years after his final
order of removal, see 8 C.F.R. § 1003.23(b)(1), and Benitez failed to establish the
due diligence required for equitable tolling of the filing deadline, see Avagyan v.
Holder, 646 F.3d 672, 679 (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); see also Valeriano v. Gonzales, 474 F.3d 669, 673 (9th Cir. 2007)
(a party’s ignorance of the information necessary to prove a claim of deception,
fraud, or error must have been “caused by circumstances beyond the party’s
control” (citation and quotation marks omitted)).
Contrary to Benitez’s contentions, the BIA applied the appropriate legal
standards, see Avagyan, 646 F.3d at 679, sufficiently considered the arguments he
raised on appeal, and provided sufficient reasoning in denying the motion to
reopen, see Najmabadi v. Holder, 597 F.3d 983, 990 (9th Cir. 2010) (“What is
required is merely that [the BIA] consider the issues raised, and announce its
2 14-71187
decision in terms sufficient to enable a reviewing court to perceive that it has heard
and thought and not merely reacted.” (citation and quotation marks omitted)).
The agency also did not abuse its discretion in denying Benitez’s motion to
reconsider the IJ’s denial of his motion to reopen, where he did not establish any
error of law or fact in the IJ’s decision. See 8 C.F.R. § 1003.23(b)(2).
PETITION FOR REVIEW DENIED.
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