Luis Barillas Galindo v. Loretta E. Lynch ( 2016 )

FILED
NOT FOR PUBLICATION OCT 04 2016
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
LUIS FRANCISCO BARILLAS No. 14-72100
GALINDO,
Agency No. A075-674-623
Petitioner,
v. MEMORANDUM*
LORETTA E. LYNCH, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted September 27, 2016**
Before: TASHIMA, SILVERMAN, and M. SMITH, Circuit Judges.
Luis Francisco Barillas Galindo, a native and citizen of Guatemala, petitions
pro se for review of the Board of Immigration Appeals’ (“BIA”) order denying his
motion to reopen. We have jurisdiction under 8 U.S.C. § 1252. We review for
*
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).
abuse of discretion the denial of a motion to reopen. Mohammed v. Gonzales, 400
F.3d 785, 791 (9th Cir. 2005). We deny the petition for review.
The BIA did not abuse its discretion in denying Barillas Galindo’s motion to
reopen as untimely, where the motion was filed more than 12 years after his final
order of removal, 8 C.F.R. § 1003.2(c)(2), and Barillas Galindo failed to exercise
the due diligence required to warrant equitable tolling of the filing deadline, see
Iturribarria v. INS, 321 F.3d 889, 897 (9th Cir. 2003) (equitable tolling is available
to a petitioner who is prevented from timely filing motion to reopen due to
deception, fraud or error, as long as petitioner exercises due diligence in
discovering such circumstances); Avagyan v. Holder, 646 F.3d 672, 679 (9th Cir.
2011) (due diligence requires petitioner to take reasonable steps to investigate any
suspected fraud or error, or if he is ignorant of such circumstances, make
reasonable efforts to pursue relief).
Contrary to Barillas Galindo’s contention, the possibility that he may
become the beneficiary of an I-130 visa petition does not provide an exception to
the filing deadline for a motion to reopen. See 8 C.F.R. § 1003.2(c).
We do not consider the extra-record documentation Barillas Galindo
submitted with his opening brief. See 8 U.S.C. § 1252(b)(4)(A) (judicial review is
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limited to the administrative record); Dent v. Holder, 627 F.3d 365, 371 (9th Cir.
2010) (stating standard for review of out-of-record evidence).
PETITION FOR REVIEW DENIED.
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