Carlos Montanez Soto v. Jefferson Sessions ( 2018 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAY 18 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
CARLOS JAVIER MONTANEZ SOTO, No. 16-72080
Petitioner, Agency No. A095-763-017
v.
MEMORANDUM*
JEFFERSON B. SESSIONS III, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted May 15, 2018**
Before: SILVERMAN, BEA, and WATFORD, Circuit Judges.
Carlos Javier Montanez Soto, 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 removal proceedings.
We have jurisdiction under 8 U.S.C. § 1252. We review for abuse of discretion the
*
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).
denial of a motion to reopen. Martinez-Hernandez v. Holder, 778 F.3d 1086, 1088
(9th Cir. 2015). We deny the petition for review.
The agency did not abuse its discretion in denying Montanez Soto’s motion
to reopen as untimely, where he conceded the motion was filed past the 90-day
filing deadline, see 8 C.F.R. § 1003.23(b)(1), and he provided no evidence of due
diligence for equitable tolling of the 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
the alien exercises due diligence in discovering such circumstances); Carrillo-
Gonzalez v. INS, 353 F.3d 1077, 1079 (9th Cir. 2003) (statements by counsel are
not evidence).
In light of this disposition, we do not address Montanez Soto’s contentions
regarding compliance with Matter of Lozada, 19 I. & N. Dec. 637 (BIA 1988).
PETITION FOR REVIEW DENIED.
2 16-72080