Jaime Garcia-Varela v. Loretta Lynch ( 2017 )

FILED
NOT FOR PUBLICATION JAN 24 2017
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JAIME NOE GARCIA-VARELA, No. 15-71652
Petitioner, Agency No. A077-541-564
v.
MEMORANDUM*
LORETTA E. LYNCH, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted January 18, 2017**
Before: TROTT, TASHIMA, and CALLAHAN, Circuit Judges.
Jaime Noe Garcia-Varela, a native and citizen of Honduras, 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. Our
jurisdiction is governed by 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 and review de novo constitutional claims. Mohammed
v. Gonzales, 400 F.3d 785, 791-92 (9th Cir. 2005). We deny in part and dismiss in
part the petition for review.
The agency did not abuse its discretion or violate due process in denying
Garcia-Varela’s motion to reopen as untimely, where Garcia-Varela filed the
motion more than fourteen years after his final order of removal, and has not
demonstrated the due diligence necessary to warrant equitable tolling of the filing
deadline. See 8 C.F.R. § 1003.23(b)(1); 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); Lata v. INS, 204 F.3d
1241, 1246 (9th Cir. 2000) (requiring error and prejudice to prevail on a due
process claim).
We lack jurisdiction to review the agency’s discretionary decision not to
reopen proceedings sua sponte, where Garcia-Varela fails to raise a colorable
constitutional claim or question of law about the sua sponte determination that
would invoke our jurisdiction. See Mejia-Hernandez v. Holder, 633 F.3d 818,
823-24 (9th Cir. 2011); cf. Bonilla v. Lynch, 840 F.3d 575, 588 (9th Cir. 2016)
(“[T]his court has jurisdiction to review Board decisions denying sua sponte
2 15-71652
reopening for the limited purpose of reviewing the reasoning behind the decisions
for legal or constitutional error.”).
In light of this disposition, we do not reach Garcia-Varela’s remaining
contentions regarding ineffective assistance of counsel, his 1999 proceedings, and
the applicability of the departure bar.
PETITION FOR REVIEW DENIED in part, DISMISSED in part.
3 15-71652