Tulio Madrid Leiva v. Jefferson Sessions, III ( 2018 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS OCT 29 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
TULIO MADRID LEIVA, AKA Tulio Rene No. 17-70590
Madrid Leiva,
Agency No. A070-217-455
Petitioner,
v. MEMORANDUM*
JEFFERSON B. SESSIONS III, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted October 22, 2018**
Before: SILVERMAN, GRABER, and GOULD, Circuit Judges.
Tulio Madrid Leiva, a native and citizen of Guatemala, petitions for review
of the Board of Immigration Appeals’ (“BIA”) order denying his motion to reopen
removal proceedings. We have jurisdiction under 8 U.S.C. § 1252. We review for
abuse of discretion the denial of a motion to reopen, and review de novo questions
*
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 law. Mohammed v. Gonzales, 400 F.3d 785, 791-92 (9th Cir. 2005). We deny
the petition for review.
The BIA did not abuse its discretion or violate due process in denying
Madrid Leiva’s motion to reopen as untimely, where he filed the motion more than
four years after his final administrative order of removal, and did not show that
equitable tolling of the filing deadline was warranted. See 8 C.F.R. § 1003.2(c)(2);
Avagyan v. Holder, 646 F.3d 672, 679 (9th Cir. 2011) (equitable tolling is
available to a petitioner who is prevented from timely filing a motion to reopen due
to deception, fraud, or error, as long as the petitioner exercises due diligence in
discovering such circumstances); Lata v. INS, 204 F.3d 1241, 1246 (9th Cir. 2000)
(requiring error and substantial prejudice to prevail on a due process claim). We
reject Madrid Leiva’s contention that the BIA ignored arguments he raised in his
motion. See Najmabadi v. Holder, 597 F.3d 983, 990 (9th Cir. 2010) (the BIA
must “merely . . . announce its decision in terms sufficient to enable a reviewing
court to perceive that it has heard and thought and not merely reacted” (citation
omitted)).
In light of our disposition, we do not reach Madrid Leiva’s remaining
contentions regarding the IJ’s alleged failure to adjudicate an asylum application,
and the alleged ineffective assistance of counsel. See Simeonov v. Ashcroft, 371
2 17-70590
F.3d 532, 538 (9th Cir. 2004) (courts and agencies are not required to decide issues
unnecessary to the results they reach).
PETITION FOR REVIEW DENIED.
3 17-70590