Jose Sancen Serrato v. William Barr ( 2019 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUN 13 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOSE SANCEN SERRATO, No. 16-70020
Petitioner, Agency No. A075-476-100
v.
MEMORANDUM*
WILLIAM P. BARR, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted June 11, 2019**
Before: WALLACE, FARRIS, and TROTT, Circuit Judges.
Jose Sancen Serrato, a native and citizen of Mexico, 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. 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. Lin v. Holder, 588 F.3d 981, 984 (9th Cir. 2009). We
deny the petition for review.
The agency did not abuse its discretion in denying as untimely Sancen
Serrato’s motion to the Immigration Judge to reopen his case, where the motion
was filed more than 90 days after his final order of removal. See 8 C.F.R. §
1003.23(b)(1). Moreover, as recognized by the BIA, he “did not assert any
arguments regarding [equitable tolling] in his motion; nor does the record indicate
that equitable tolling is appropriate.” Sancen Serrato has not sufficiently explained
why he did not timely file the motion, and thus has not demonstrated that he
warrants 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).
In light of our disposition, we do not reach Sancen Serrato’s remaining
contentions regarding his prior counsel’s competence, prejudice resulting from his
prior counsel’s performance, or compliance with the procedural requirements of
Matter of Lozada, 19 I. & N. Dec. 637 (BIA 1988). See Simeonov v. Ashcroft, 371
F.3d 532, 538 (9th Cir. 2004) (courts and agencies are not required to decide issues
unnecessary to the results they reach).
2 16-70020
PETITION FOR REVIEW DENIED.
3 16-70020