Fidencio Sanchez-Urieta v. Loretta E. Lynch , 646 F. App'x 513 ( 2016 )

FILED
NOT FOR PUBLICATION MAR 25 2016
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
FIDENCIO SANCHEZ-URIETA, No. 13-72660
Petitioner, Agency No. A096-063-369
v.
MEMORANDUM*
LORETTA E. LYNCH, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted March 15, 2016**
Before: GOODWIN, LEAVY, and CHRISTEN, Circuit Judges.
Fidencio Sanchez-Urieta, a native and citizen of Mexico, petitions for review
of the Board of Immigration Appeals’ order summarily affirming an immigration
judge’s order denying his motion to reopen removal proceedings conducted in
absentia. We have jurisdiction under 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, 674
(9th Cir. 2011). We deny the petition for review.
The agency did not abuse its discretion in denying as untimely Sanchez-
Urieta’s motion to reopen, where his motion was filed over nine years after
issuance of his final order of removal, and Sanchez-Urieta does not challenge the
agency’s determination that he received the required written notice of the hearing.
See 8 C.F.R. § 1003.23(b)(1) & (4)(ii) (setting 180-day deadline for motions to
reopen in absentia removal orders based on exceptional circumstances, 90-day
deadline for motions to seek new relief, and no deadline for motions based on lack
of notice of a hearing). In addition, Sanchez-Urieta 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 an alien who is prevented from timely
filing a motion to reopen due to deception, fraud or error, as long as petitioner
exercises due diligence in discovering such circumstances).
Contrary to Sanchez-Urieta’s contention, the BIA’s decision in Matter of M-
S-, 22 I. & N. Dec. 349 (BIA 1998), concerning aliens who do not receive oral
warnings of the consequences of failing to appear, does not provide an independent
basis for untimely reopening of his removal proceedings to apply for voluntary
departure. See Matter of Monges-Garcia, 25 I. & N. Dec. 246, 250-53 (BIA 2010)
2 13-72660
(regulatory filing deadlines apply to motions to reopen in absentia proceedings in
order to apply for new relief).
The agency sufficiently articulated its reasons for denying his motion. See
Najmabadi v. Holder, 597 F.3d 983, 990 (9th Cir. 2010).
In light of this disposition, we need not reach Sanchez-Urieta’s remaining
contentions regarding whether he demonstrated exceptional circumstances. See
Simeonov v. Ashcroft, 37 F.3d 532, 538 (9th Cir. 2004).
PETITION FOR REVIEW DENIED.
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