Jesus Melendres v. William Barr ( 2019 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS AUG 26 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JESUS MELENDRES; HILDA No. 18-70406
MELENDRES,
Agency Nos. A075-681-566
Petitioners, A075-681-567
v.
MEMORANDUM*
WILLIAM P. BARR, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted August 19, 2019**
Before: SCHROEDER, PAEZ, and HURWITZ, Circuit Judges.
Jesus and Hilda Melendres, natives and citizens of Mexico, petition for
review of the Board of Immigration Appeals’ (“BIA”) order denying their motion
to reopen. We have jurisdiction under 8 U.S.C. § 1252. We review for abuse of
discretion the denial of a motion to reopen. Mohammed v. Gonzales, 400 F.3d 785,
*
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).
791 (9th Cir. 2005). We deny the petition for review.
The BIA did not abuse its discretion in denying as untimely petitioners’
motion to reopen based on ineffective assistance of counsel, where they filed the
motion more than twelve years after their final administrative order of removal,
and they did not show due diligence for equitable tolling of the filing deadline. See
8 C.F.R. § 1003.2(c)(2), (3) (subject to exceptions, a motion to reopen must be
filed no later than 90 days after the date of the final administrative decision);
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).
Because this determination is dispositive, we do not reach petitioners’
remaining contentions regarding hardship. 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).
PETITION FOR REVIEW DENIED.
2 18-70406