Perfecto Solano-Garcia v. Eric Holder, Jr.

FILED
NOT FOR PUBLICATION JAN 30 2015

MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

PERFECTO SOLANO-GARCIA, No. 12-73368

Petitioner, Agency No. A079-519-060

v.
MEMORANDUM*
ERIC H. HOLDER, Jr., Attorney General,

Respondent.

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

Submitted January 21, 2015**

Before: CANBY, GOULD, and N.R. SMITH, Circuit Judges.

Perfecto Solano-Garcia, a native and citizen of Mexico, petitions pro se for

review of the Board of Immigration Appeals’ (“BIA”) order denying his motion 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 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).
reissue. Hernandez-Valasquez v. Holder, 611 F.3d 1073, 1077 (9th Cir. 2010).

We review de novo constitutional claims. Id. We deny in part and dismiss in part

the petition for review.

The BIA did not abuse its discretion in denying Solano-Garcia’s motion to

reopen as untimely, where Solano-Garcia filed the motion more than seven years

after his order of removal became final, see 8 C.F.R. § 1003.2(c)(2) (a motion to

reopen must be filed within 90 days of a final order of removal), and he failed to

establish the due diligence required for equitable tolling of the filing deadline, see

Avagyan v. Holder, 646 F.3d 672, 679-80 (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 the alien exercises due diligence in discovering

such circumstances).

Because the BIA committed no error in denying Solano-Garcia’s motion to

reopen for failure to demonstrate due diligence, it follows that the BIA also did not

violate his due process rights in denying the motion. See Lata v. INS, 204 F.3d

1241, 1246 (9th Cir. 2000) (an alien must demonstrate error and prejudice to

prevail on a due process challenge).

We lack jurisdiction to review the BIA’s decision not to reopen proceedings

sua sponte. See Mejia-Hernandez v. Holder, 633 F.3d 818, 823-24 (9th Cir. 2011).

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 Because the timeliness determination is dispositive, we do not address

Solano-Garcia’s remaining contentions regarding his motion to reopen.

The BIA did not abuse its discretion in denying Solano-Garcia’s motion to

reissue its prior order, where the record shows that the BIA mailed that order to

Solano-Garcia’s counsel of record. See 8 C.F.R. § 1292.5(a) (permitting service

upon an alien’s counsel of record); Singh v. Gonzales, 494 F.3d 1170, 1172 (9th

Cir. 2007) (“If the decision was properly mailed, then the BIA fulfilled its statutory

duty of service.”).

This dismissal is without prejudice to petitioner’s seeking prosecutorial

discretion or deferred action from the Department of Homeland Security. See

Reno v. American-Arab Anti-Discrimination Committee (AADC), 525 U.S. 471,

483-85 (1999) (stating that prosecutorial discretion by the agency can be granted at

any stage, including after the conclusion of judicial review).

PETITION FOR REVIEW DENIED in part; DISMISSED in part.

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