Javier Herrera-Castaneda v. Jefferson Sessions , 678 F. App'x 514 ( 2017 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS FEB 22 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JAVIER HERRERA-CASTANEDA, No. 15-72489
Petitioner, Agency No. A095-723-057
v.
MEMORANDUM*
JEFF B. SESSIONS, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted February 14, 2017**
Before: GOODWIN, FARRIS, and FERNANDEZ, Circuit Judges.
Javier Herrera-Castaneda, a native and citizen of Mexico, 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. Avagyan v.
*
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).
Holder, 646 F.3d 672, 674 (9th Cir. 2011). We deny the petition for review.
The BIA did not abuse its discretion in denying Herrera-Castaneda’s motion
to reopen as untimely, where it was filed more than two years after his final order
of removal, see 8 C.F.R. § 1003.2(c)(2), and Herrera-Castaneda did not
demonstrate his motion came within any statutory or regulatory exception to the
filing deadline, see 8 U.S.C. § 1229a(c)(7)(C)(ii), (iv); 8 C.F.R. §1003.2(c)(3).
Herrera-Castaneda contends the BIA did not address his contention
regarding equitable tolling. Although his motion to reopen uses the term equitable
tolling, his request also refers to sua sponte reopening, uses the standard for sua
sponte reopening instead of discussing tolling factors, and cites to authority
regarding sua sponte reopening. Because the BIA’s order does address sua sponte
reopening, remand is not warranted.
In light of this decision, we need not address Herrera-Castaneda’s remaining
contentions regarding the merits of his motion to reopen or eligibility for
cancellation of removal.
PETITION FOR REVIEW DENIED.
2 15-72489