Edmer Nieto v. Loretta Lynch , 670 F. App'x 559 ( 2016 )

FILED
NOT FOR PUBLICATION NOV 04 2016
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
EDMER R. NIETO, No. 15-71405
Petitioner, Agency No. A094-168-094
v.
MEMORANDUM*
LORETTA E. LYNCH, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted October 25, 2016**
Before: LEAVY, SILVERMAN, and GRABER, Circuit Judges.
Edmer R. Nieto, a native and citizen of El Salvador, petitions 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 abuse of discretion the
*
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).
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 by denying Nieto’s motion to reopen as
untimely, where the motion was filed more than one year after his final order of
removal, and Nieto failed to establish the due diligence required for equitable
tolling of the filing deadline. See 8 C.F.R. § 1003.2(c)(2); Avagyan v. Holder, 646
F.3d 672, 679 (9th Cir. 2011) (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).
We reject Nieto’s contentions that the BIA failed to analyze all relevant
evidence and did not sufficiently address the issue of equitable tolling. See
Najmabadi v. Holder, 597 F.3d 983, 990-91 (9th Cir. 2010) (holding the BIA
adequately considered evidence and sufficiently announced its decision).
In light of this disposition, we do not reach Nieto’s remaining contentions
regarding eligibility for NACARA relief.
PETITION FOR REVIEW DENIED.
2 15-71405