Juan Sarmiento v. Eric Holder, Jr. , 591 F. App'x 587 ( 2015 )

FILED
NOT FOR PUBLICATION JAN 29 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JUAN ANTONIO SARMIENTO, No. 09-73426
Petitioner, Agency No. A094-167-151
v.
MEMORANDUM*
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
January 21, 2015**
Before: CANBY, GOULD, and N.R. SMITH, Circuit Judges.
Juan Antonio Sarmiento, a native and citizen of El Salvador, petitions for
review of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal
from an immigration judge’s (“IJ”) decision denying his motion to reopen removal
proceedings conducted in absentia. We have jurisdiction under 8 U.S.C. § 1252.
*
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).
We review for abuse of discretion the denial of a motion to reopen, and we review
de novo questions of law. Singh v. Ashcroft, 367 F.3d 1182, 1185 (9th Cir. 2004).
We deny the petition for review.
The agency did not abuse its discretion by denying as untimely Sarmiento’s
motion to reopen where he filed his motion nearly eight years after his in absentia
order of removal became administratively final, see 8 U.S.C. § 1229a(c)(7)(C)(i);
8 C.F.R. § 1003.23(b)(1), (4), and he failed to demonstrate inadequate notice such
as would warrant an exception to the filing deadline where he personally received
and signed the notice to appear informing him of the time, date, and place of his
removal hearing, see Khan v. Ashcroft, 374 F.3d 825, 828-29 (9th Cir. 2004). It
follows that Sarmiento’s due process claim fails. See Lata v. INS, 204 F.3d 1241,
1246 (9th Cir. 2000) (requiring error and prejudice to prevail on due process
claim).
Sarmiento also failed to demonstrate that his motion warranted equitable
tolling of the filing deadline based on ineffective assistance where he knowingly
relied on the assistance of non-attorneys for nearly eight years. See Singh-Bhathal
v. INS, 170 F.3d 943, 946-47 (9th Cir. 1999) (reliance on advice of non-attorney
immigration consultant insufficient to demonstrate “exceptional circumstances”
necessary to reopen in absentia proceedings).
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Sarmiento’s purported eligibility for other forms of relief did not require the
IJ to reopen his removal proceedings in the absence of a timely motion to reopen.
See Ekimian v. INS, 303 F.3d 1153, 1156 (9th Cir. 2002) ( “[A] motion to reopen
to consider an application for an adjustment of status must be presented to the
[agency] no later than ninety days after the issuance of a final decision by the
[agency].”).
Lastly, Sarmiento’s contention that the BIA failed to provide a reasoned
explanation for its decision is not supported by the record.
This dismissal is without prejudice to petitioner’s seeking prosecutorial
discretion or deferred action from the Department of Homeland Security. See
Reno v. American-Arab Anti-Discrimination Committee (AADC), 525 U.S. 471,
483-85 (1999) (stating that prosecutorial discretion by the agency can be granted at
any stage, including after the conclusion of judicial review).
PETITION FOR REVIEW DENIED.
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