UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-1312
MARVIN ANTONIO OBANDO, a/k/a Marvin Antonio Toledo,
Petitioner,
v.
ERIC H. HOLDER, JR., Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration
Appeals.
Submitted: December 12, 2014 Decided: December 18, 2014
Before WILKINSON, KING, and SHEDD, Circuit Judges.
Petition denied by unpublished per curiam opinion.
Timothy W. Davis, LAW OFFICE OF TIMOTHY W. DAVIS, LLC,
Baltimore, Maryland, for Petitioner. Joyce R. Branda, Acting
Assistant Attorney General, John S. Hogan, Senior Litigation
Counsel, Roger Thomas Severino, Office of Immigration
Litigation, UNITED STATES DEPARTMENT OF JUSTICE, Washington,
D.C., for Respondent.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Marvin Antonio Obando, a native and citizen of El
Salvador, petitions for review of an order of the Board of
Immigration Appeals (“Board”) dismissing his appeal from the
immigration judge’s (“IJ”) order denying reopening and
rescission of the in absentia order of removal. We deny the
petition for review.
We review the denial of a motion to reopen for abuse
of discretion. 8 C.F.R. § 1003.23(b)(1)(iv) (2014); INS v.
Doherty, 502 U.S. 314, 323-24 (1992); Barry v. Gonzales, 445
F.3d 741, 744 (4th Cir. 2006). We will reverse the denial of a
motion to reopen only if the denial is “arbitrary, capricious,
or contrary to law.” Barry, 445 F.3d at 745 (internal quotation
marks omitted). Because Obando waited twelve years to file his
motion to reopen and rescind, he must show that he is eligible
for equitable tolling. See Kuusk v. Holder, 732 F.3d 302, 305
(4th Cir. 2013) (the principles of equitable tolling apply to
the time limits for motions to reopen). We conclude that the
record does not support the finding that it was “impossible” for
Obando to have acted earlier. Id. We further conclude that
substantial evidence supports the finding that Obando was not
diligent in seeking relief from the removal order. See Neves v.
Holder, 613 F.3d 30, 33 (1st Cir. 2010) (whether Petitioner was
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diligent in seeking relief is reviewed for substantial
evidence).
Obando also claims he was denied due process because
the Board did not consider his claim that the IJ erred denying
sua sponte reopening. We find this claim to be without merit
because the Board clearly considered the IJ’s decision, albeit
in a footnote and without the analysis Obando was hoping for.
Also, Obando’s contention that the IJ’s denial of sua sponte
reopening was an error as a matter of law is clearly not
supported by the record. Because the decision to deny sua
sponte reopening was a matter of discretion, we are without
jurisdiction to review it. See Mosere v. Mukasey, 552 F.3d 397,
400-01 (4th Cir. 2009).
Accordingly, we deny the petition for review. We
dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before
this court and argument would not aid the decisional process.
PETITION DENIED
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