FILED
NOT FOR PUBLICATION JUL 25 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
GABRIEL FELIX-FERNANDEZ, No. 10-71305
Petitioner, Agency No. A079-528-975
v.
MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted July 12, 2011 **
Before: SCHROEDER, ALARCÓN, and LEAVY, Circuit Judges.
Gabriel Felix-Fernandez, a native and citizen of Mexico, petitions for review
of the Board of Immigration Appeals’ (“BIA”) order denying his motion to reopen
based on ineffective assistance of counsel. Our jurisdiction is governed by
8 U.S.C. § 1252. We review for abuse of discretion the denial of a motion to
*
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).
reopen, Iturribarria v. INS, 321 F.3d 889, 894 (9th Cir. 2003), and we deny in part
and dismiss in part the petition for review.
The BIA did not abuse its discretion in denying Felix-Fernandez’s motion to
reopen as untimely because the motion was filed more than three years after the
agency’s final order of removal, see 8 C.F.R. § 1003.2(c)(2), and Felix-Fernandez
did not show that he acted with the due diligence required for equitable tolling of
the filing deadline, see Iturribarria, 321 F.3d at 897.
We lack jurisdiction to consider the BIA’s discretionary decision not to sua
sponte reopen or reconsider pursuant to 8 C.F.R. § 1003.2(a). Mejia-Hernandez v.
Holder, 633 F.3d 818, 823-24 (9th Cir. 2011); see also Matter of G-D-, 22 I. & N.
Dec. 1132, 1135 (BIA 1999) (BIA’s consideration of whether a fundamental
change in the law warrants reopening involves an exercise of its sua sponte
authority).
PETITION FOR REVIEW DENIED in part; DISMISSED in part.
2 10-71305