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 2019-01

Fermin Gonzalez Vasquez v. Matthew Whitaker ( 2019 )


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  •                               NOT FOR PUBLICATION                        FILED
UNITED STATES COURT OF APPEALS                        JAN 18 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
FERMIN GONZALEZ VASQUEZ,                         No.   17-72804
Petitioner,                      Agency No. A070-669-661
v.
MEMORANDUM*
MATTHEW G. WHITAKER, Acting
Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted January 15, 2019**
Before:      TROTT, TALLMAN, and CALLAHAN, Circuit Judges.
Fermin Gonzalez Vasquez, a native and citizen of Guatemala, petitions for
review of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal
from an immigration judge’s order denying his motion to reopen deportation
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 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).
We review for abuse of discretion the denial of a motion to reopen, and we review
de novo constitutional claims. Mohammed v. Gonzales,
    400 F.3d 785
    , 791-92 (9th
Cir. 2005). We deny the petition for review.
The agency did not abuse its discretion or violate due process in denying
Gonzalez Vasquez’s motion to reopen as untimely, where he filed it 21 years after
his final order of deportation, and he failed to show diligence for equitable tolling
of the filing deadline. See
    8 C.F.R. § 1003.23
    (b)(4)(iii)(A)(1); 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 the alien exercises due diligence in discovering such circumstances);
Lata v. INS,
    204 F.3d 1241
    , 1246 (9th Cir. 2000) (requiring error and substantial
prejudice to prevail on a due process challenge).
Because the timeliness determination is dispositive, we do not reach
Gonzalez Vasquez’s contentions regarding exceptional circumstances. See
Simeonov v. Ashcroft,
    371 F.3d 532
    , 538 (9th Cir. 2004) (courts and agencies are
not required to reach non-dispositive issues).
PETITION FOR REVIEW DENIED.
2                                    17-72804