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NOT FOR PUBLICATION JAN 30 2015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.
3 12-73368