Jose Aguirre v. Loretta E. Lynch , 605 F. App'x 653 ( 2015 )

FILED
NOT FOR PUBLICATION MAY 21 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOSE LUIS AGUIRRE, No. 13-72832
Petitioner, Agency No. A088-965-089
v.
MEMORANDUM*
LORETTA E. LYNCH, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted May 13, 2015**
Before: LEAVY, CALLAHAN, and M. SMITH, Circuit Judges.
Jose Luis Aguirre, a native and citizen of El Salvador, petitions for review of
the Board of Immigration Appeals’ order dismissing his appeal from an
immigration judge’s order denying his motion to reopen removal proceedings
conducted in absentia. We have jurisdiction under 8 U.S.C. § 1252. We review
*
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).
for abuse of discretion the denial of a motion to reopen. Avagyan v. Holder, 646
F.3d 672, 674 (9th Cir. 2011). We deny the petition for review.
The agency did not abuse its discretion by denying as untimely Aguirre’s
motion to reopen where he filed the motion approximately two years after issuance
of his order of removal in absentia, see 8 C.F.R. § 1003.23(b)(4)(ii), and failed to
demonstrate the due diligence necessary to warrant equitable tolling of the filing
deadline, see Iturribarria v. INS, 321 F.3d 889, 897 (9th Cir. 2003) (equitable
tolling is available “when a petitioner is prevented from filing because of
deception, fraud, or error, as long as the petitioner acts with due diligence in
discovering the deception, fraud, or error”); Avagyan, 646 F.3d at 679 (diligence
requires petitioner to “take reasonable steps to investigate [any] suspected fraud”
or make “reasonable efforts to pursue relief”).
In light of this disposition, we need not reach Aguirre’s remaining
contentions regarding ineffective assistance of counsel. See Mendez-Alcaraz v.
Gonzales, 464 F.3d 842, 844 (9th Cir. 2006) (declining to reach nondispositive
challenges to a BIA order).
PETITION FOR REVIEW DENIED.
2 13-72832