Maria Basurto Camacho v. Loretta E. Lynch ( 2016 )

FILED
NOT FOR PUBLICATION MAY 03 2016
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARIA ALEJANDRINA BASURTO No. 14-71201
CAMACHO,
Agency No. A095-313-437
Petitioner,
v. MEMORANDUM*
LORETTA E. LYNCH, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted April 26, 2016**
Before: McKEOWN, WARDLAW, and PAEZ, Circuit Judges.
Maria Alejandrina Basurto Camacho, a native and citizen of Mexico,
petitions for review of the Board of Immigration Appeals’ (“BIA”) order denying
her motion to reopen removal proceedings based on ineffective assistance of
counsel. Our jurisdiction is governed by 8 U.S.C. § 1252. We review for abuse of
*
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).
discretion the denial of a motion to reopen. Avagyan v. Holder, 646 F.3d 672, 678
(9th Cir. 2011). We deny in part and dismiss in part the petition for review.
The BIA did not abuse its discretion in denying Basurto Camacho’s motion
to reopen as untimely where the motion was filed more than nine years after her
removal order became final, see 8 C.F.R. § 1003.2(c)(2), and Basurto Camacho
failed to establish the due diligence required for equitable tolling of the filing
deadline, see Avagyan, 646 F.3d at 679 (equitable tolling is available to a petitioner
who is prevented from filing because of deception, fraud or error, as long as
petitioner exercised due diligence in discovering such circumstances).
In light of our disposition, we do not reach Basurto Camacho’s contentions
regarding prejudice. See Simeonov v. Ashcroft, 371 F.3d 532, 538 (9th Cir. 2004)
(“As a general rule courts and agencies are not required to make findings on issues
the decision of which is unnecessary to the results they reach.” (citation and
quotation marks omitted)).
We lack jurisdiction to review the BIA’s decision not to reopen proceedings
sua sponte. See Mejia-Hernandez v. Holder, 633 F.3d 818, 824 (9th Cir. 2011)
(“No significant changes have occurred since Ekimian that would allow . . . us to
review sua sponte reopening.”).
2 14-71201
We deny Basurto Camacho’s motion to supplement the record. See Dent v.
Holder, 627 F.3d 365, 371 (9th Cir. 2010) (explaining standard for review of
out-of-record evidence).
PETITION FOR REVIEW DENIED in part; DISMISSED in part.
3 14-71201