Daniel Lima v. Loretta E. Lynch ( 2016 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS AUG 2 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
DANIEL ISRAEL LIMA, No. 15-71116
Petitioner, Agency No. A074-812-497
v.
MEMORANDUM*
LORETTA E. LYNCH, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted July 26, 2016**
Before: SCHROEDER, CANBY, and CALLAHAN, Circuit Judges.
Daniel Israel Lima, a native and citizen of Guatemala, petitions for review of
the Board of Immigration Appeals’ order summarily affirming an immigration
judge’s order denying his motion to reopen removal proceedings conducted in
absentia. Our jurisdiction is governed by 8 U.S.C. § 1252. We review for abuse
*
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).
of discretion the denial of a motion to reopen. Avagyan v. Holder, 646 F.3d 672,
678 (9th Cir. 2011). We deny in part and dismiss in part the petition for review.
The agency did not abuse its discretion in denying Lima’s motion to reopen
as untimely, where it was filed nine months after the issuance of his in absentia
removal order, see 8 C.F.R. § 1003.23(b)(4)(ii) (motion to reopen and rescind must
be filed within 180 days), and Lima failed to establish the due diligence required
for equitable tolling of the filing deadline, see Avagyan, 646 F.3d at 679 (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). In light of this disposition, we do
not reach Lima’s contention that exceptional circumstances prevented him from
appearing at his hearing.
We lack jurisdiction to review the agency’s sua sponte determination. See
Mejia-Hernandez v. Holder, 633 F.3d 818, 823-24 (9th Cir. 2011).
PETITION FOR REVIEW DENIED in part; DISMISSED in part.
2 15-71116