Rigoberto Segura Rodriguez v. Loretta E. Lynch

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS NOV 23 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
RIGOBERTO SEGURA RODRIGUEZ; et No. 12-73083
al.,
Agency Nos. A097-364-453
Petitioners, A097-364-454
A097-364-455
v. A097-364-456
A097-364-457
LORETTA E. LYNCH, Attorney General,
Respondent. MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted November 16, 2016**
Before: LEAVY, BERZON, and MURGUIA, Circuit Judges.
Rigoberto Segura Rodriguez and Ana Maria Segura Comparan, and their
children Sergio Alberto Segura Comparan, Josue Omar Segura Comparan, and
Juan Carlos Segura Comparan, natives and citizens of Mexico, petition pro se for
review of the Board of Immigration Appeals’ (“BIA”) order denying their motion
*
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).
to reopen removal proceedings. Our jurisdiction is governed by 8 U.S.C. § 1252.
We review for abuse of discretion the denial of a motion to reopen, and review de
novo constitutional claims. Hernandez-Velasquez v. Holder, 611 F.3d 1073, 1077
(9th Cir. 2010). We deny in part and dismiss in part the petition for review.
The BIA did not abuse its discretion or violate due process in denying the
motion to reopen as untimely, where the motion was filed more than six years after
the final administrative order, see 8 C.F.R. § 1003.2(c)(2), and petitioners 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); Lata v. INS, 204 F.3d 1241, 1246 (9th Cir. 2000)
(to prevail on a due process challenge, an alien must show error and prejudice).
Petitioners’ contention that the BIA did not sufficiently address their
contentions is not supported by the record.
Because the timeliness determination is dispositive, we do not reach
petitioners’ contentions regarding compliance with Matter of Lozada, 19 I. & N.
Dec. 637 (BIA 1988), the competency of former counsel’s representation, or their
2 12-73083
eligibility for asylum and related relief.
We lack jurisdiction to review the agency’s decision not to administratively
close proceedings. See Diaz-Covarrubias v. Mukasey, 551 F.3d 1114, 1120 (9th
Cir. 2009) (this court lacks jurisdiction to review the denial of administrative
closure for lack of a sufficiently meaningful standard to evaluate the decision). We
also lack jurisdiction to consider petitioners’ unexhausted contention regarding the
immigration judge’s exercise of discretion. See Barron v. Ashcroft, 358 F.3d 674,
678 (9th Cir. 2004) (8 U.S.C. Ҥ 1252(d)(1) mandates exhaustion and therefore
generally bars us, for lack of subject-matter jurisdiction, from reaching the merits
of a legal claim not presented in administrative proceedings below.”)
PETITION FOR REVIEW DENIED in part; DISMISSED in part.
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