Guillermo Ayala-Perez v. Jefferson Sessions ( 2017 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 16 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
GUILLERMO AYALA-PEREZ, AKA No. 15-72762
Guillermo Perez,
Agency No. A092-169-546
Petitioner,
v. MEMORANDUM *
JEFFERSON B. SESSIONS III, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted March 8, 2017**
Before: LEAVY, W. FLETCHER, and OWENS, Circuit Judges.
Guillermo Ayala-Perez, a native and citizen of Mexico, petitions for review
of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an
immigration judge’s (“IJ”) order denying his motion to reopen removal
proceedings. Our jurisdiction is governed by 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 and review de novo questions
of law. Mohammed v. Gonzales, 400 F.3d 785, 791-92 (9th Cir. 2005). We deny
in part and dismiss in part the petition for review.
The agency did not abuse its discretion in denying Ayala-Perez’s motion to
reopen as untimely, where it was filed more than 15 years after his final order of
removal, see 8 C.F.R. § 1003.23(b)(1), and Ayala-Perez failed to establish the due
diligence required for equitable tolling of the filing deadline, see 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).
Ayala-Perez’s contention that the BIA erred in denying sua sponte reopening
for lack of due diligence does not raise a legal or constitutional error to invoke our
jurisdiction. See Bonilla v. Lynch, 840 F.3d 575, 588 (9th Cir. 2016).
We lack jurisdiction to consider Ayala-Perez’s contentions regarding due
process violations at his underlying 1999 removal proceedings because this
petition is not timely as to the IJ’s 1999 decision. See 8 U.S.C. § 1252(b)(1).
PETITION FOR REVIEW DENIED in part; DISMISSED in part.
2 15-72762