Jose Salazar-Carranza v. Eric Holder, Jr.

FILED
NOT FOR PUBLICATION MAR 29 2011

MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS

FOR THE NINTH CIRCUIT

JOSE MAURICIO SALAZAR- No. 10-71274
CARRANZA, AKA Joe Salazar, Jr.,
Agency No. A023-075-675
Petitioner,

v. MEMORANDUM *

ERIC H. HOLDER, Jr., Attorney General,

Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals

**
Submitted March 8, 2010

Before: FARRIS, LEAVY, and BYBEE, Circuit Judges.

Jose Mauricio Salazar-Carranza, a native and citizen of El Salvador,

petitions for review of the decision of the Board of Immigration Appeals denying,

as untimely filed, his motion to reopen removal proceedings.

*
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).
 Salazar-Carranza alleges that the untimeliness of his motion to reopen was

excused by equitable tolling, and that he was improperly placed in removal

proceedings.

The BIA did not abuse its discretion in denying Salazar-Carranza’s motion

to reopen as untimely filed, see 8 C.F.R. § 1003.2(c)(2), and petitioner failed to

establish that he acted with the due diligence required for equitable tolling, see

Iturribarria v. INS, 321 F.3d 889, 897 (9th Cir. 2003) (deadline for filing a motion

to reopen can be equitably tolled “when a petitioner is prevented from filing

because of deception, fraud, or error, as long as the petitioner acts with due

diligence”). In any event, we lack jurisdiction to review Salazar-Carranza’s

equitable tolling claim because he did not raise this claim before the BIA. See

Barron v. Ashcroft, 358 F.3d 674, 677-78 (9th Cir. 2004). To the extent that

petitioner challenges the BIA’s refusal to reopen sua sponte, we lack jurisdiction to

review that decision. See Ekimian v. INS, 303 F.3d 21153, 1159 (9th Cir. 2002).

PETITION FOR REVIEW DENIED in part; DISMISSED in part.

2 10-71274