Jose Flores-Venegas v. Eric Holder, Jr. ( 2012 )

FILED
NOT FOR PUBLICATION OCT 12 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
JOSE DE JESUS FLORES-VENEGAS, No. 11-71650
Petitioner, Agency No. A092-612-326
v.
MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted October 9, 2012 **
Before: RAWLINSON, MURGUIA, and WATFORD, Circuit Judges.
Jose De Jesus Flores-Venegas, a native and citizen of Mexico, petitions for
review of an order of the Board of Immigration Appeals (“BIA”) dismissing his
motion to reopen based on a claim of ineffective assistance of counsel. 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 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
BIA’s denial of a motion to reopen. Avagyan v. Holder, 646 F.3d 672, 674
(9th Cir. 2011). We deny in part and dismiss in part the petition for review.
The BIA did not abuse its discretion by denying Flores-Venegas’s motion to
reopen as untimely, where he filed his motion more than five months after issuance
of the final order of removal, see 8 U.S.C. § 1229a(c)(7)(C)(i), and failed to
demonstrate that ineffective assistance of counsel delayed the filing of his motion
to reopen, see Avagyan, 646 F.3d at 678 (“[A] petitioner is entitled to equitable
tolling of the deadline during periods when a petitioner is prevented from filing
because of a deception, fraud, or error” (citation and internal quotation marks
omitted)). Consequently, Flores-Venegas’s related contention that the BIA abused
its discretion by not providing a reasoned explanation for its decision fails. See
Pablo v. INS, 72 F.3d 110, 113-14 (9th Cir. 1995) (concluding that the BIA did not
abuse its discretion because it articulated its reasoning and showed proper
consideration of the relevant evidence).
We lack jurisdiction to consider Flores-Venegas’s contentions that his
unawareness of the BIA’s dismissal of his earlier appeal prevented him from
timely filing his motion and that he warrants sua sponte reopening, because Flores-
Venegas failed to exhaust these claims before the BIA. See Tijani v. Holder,
628 F.3d 1071, 1080 (9th Cir. 2010).
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Finally, because the foregoing determinations are dispositive of the present
petition for review, we decline to consider Flores-Venegas’s contention regarding
due diligence. See Mendez-Alcaraz v. Gonzales, 464 F.3d 842, 844 (9th Cir. 2006)
(declining to reach nondispositive challenges to a BIA order).
PETITION FOR REVIEW DENIED in part; DISMISSED in part.
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