Gilberto Flores Cortes v. Loretta E. Lynch ( 2016 )

FILED
NOT FOR PUBLICATION AUG 02 2016
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
GILBERTO FLORES CORTES, No. 14-74029
Petitioner, Agency No. A070-945-735
v.
MEMORANDUM*
LORETTA E. LYNCH, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted May 24, 2016**
Before: REINHARDT, W. FLETCHER, and OWENS, Circuit Judges.
Gilberto Flores Cortes, a native and citizen of Mexico, petitions for review
of the Board of Immigration Appeals’ (“BIA”) order denying his motion to reopen
removal proceedings based on ineffective assistance of counsel. We have
jurisdiction under 8 U.S.C. § 1252. We review for abuse of discretion the denial 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).
a motion to reopen. Mohammed v. Gonzales, 400 F.3d 785, 791 (9th Cir. 2005).
We deny the petition for review.
The BIA did not abuse its discretion in denying Flores Cortes’ motion to
reopen as untimely, where Flores Cortes filed the motion over thirteen years after
his final order of removal, see 8 C.F.R. § 1003.2(c)(2), and he has not
demonstrated the due diligence necessary to warrant 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 filing a motion to reopen due
to deception, fraud, or error, as long as the alien exercises due diligence in
discovering such circumstances).
Flores Cortes’ contentions that the BIA failed to consider relevant factors or
the evidence submitted with his motion, relied on false and arbitrary facts, and
engaged in speculation and conjecture are unsupported by the record.
Accordingly, Flores Cortes’ due process claim fails. See Lata v. INS, 204 F.3d
1241, 1246 (9th Cir. 2000) (requiring error and prejudice to prevail on a due
process challenge).
In light of our disposition, we need not reach Flores Cortes’ remaining
contention regarding his prior counsel’s ineffective assistance.
PETITION FOR REVIEW DENIED.
2 14-74029