Gabriel Felix-Fernandez v. Eric Holder, Jr.

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NOT FOR PUBLICATION JUL 25 2011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