Gaspar Pastor Oxlaj v. Eric Holder, Jr.

FILED
NOT FOR PUBLICATION AUG 14 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
GASPAR PASTOR OXLAJ, No. 10-73194
Petitioner, Agency No. A070-917-232
v.
MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted August 8, 2012 **
Before: ALARCÓN, BERZON, and IKUTA, Circuit Judges.
Gaspar Pastor Oxlaj, 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 decision denying his motion to reopen removal proceedings
conducted in absentia. Our jurisdiction is governed by 8 U.S.C. § 1252. We
*
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).
review for abuse of discretion the denial of a motion to reopen, Sembiring v.
Gonzales, 499 F.3d 981, 985 (9th Cir. 2007), and we deny in part and dismiss in
part the petition for review.
The agency did not abuse its discretion in denying Pastor Oxlaj’s motion to
reopen as untimely where he filed the motion nearly eleven years after he was
ordered removed, see 8 C.F.R. § 1003.23(b)(4)(ii), and failed to submit sufficient
evidence to rebut the presumption of proper delivery of his Notice to Appear, see
Sembiring, 499 F.3d at 987-88.
In his opening brief, Pastor Oxlaj has waived any challenge to the BIA’s
determinations that he was not entitled to equitable tolling of the filing deadline for
his motion, and that he failed to establish changed country conditions in Guatemala
in order to qualify for a regulatory exception to the deadline. See Rizk v. Holder,
629 F.3d 1083, 1091 n.3 (9th Cir. 2011) (issues not raised in a petitioner’s opening
brief are deemed waived). His contention that the BIA failed to consider certain
arguments he raised on appeal is not supported by the record.
Finally, we lack jurisdiction to consider Pastor Oxlaj’s challenge to the
agency’s refusal to reopen his removal proceedings sua sponte. See Mejia-
Hernandez v. Holder, 633 F.3d 818, 823-24 (9th Cir. 2011).
PETITION FOR REVIEW DENIED in part; DISMISSED in part.
2 10-73194