Jose Gomez-Rivera v. Eric Holder, Jr.

FILED NOT FOR PUBLICATION MAR 02 2015 MOLLY C. DWYER, CLERK UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT JOSE GOMEZ-RIVERA, No. 12-72970 Petitioner, Agency No. A091-815-342 v. MEMORANDUM* ERIC H. HOLDER, Jr., Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted February 17, 2015** Before: O’SCANNLAIN, LEAVY, and FERNANDEZ, Circuit Judges. Jose Gomez-Rivera, a native and citizen of Mexico, petitions for review of the Board of Immigration Appeals’ (“BIA”) order denying his motion to reopen removal proceedings. We have jurisdiction under 8 U.S.C. § 1252. We review for * 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). abuse of discretion the denial of a motion to reopen, Mohammed v. Gonzales, 400 F.3d 785, 791 (9th Cir. 2005), and we deny the petition for review. The BIA did not abuse its discretion in denying Gomez-Rivera’s motion to reopen as untimely, where he filed the motion more than six years after his final order of removal, 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 has not established 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 petitioner exercises due diligence in discovering such circumstances). In light of our disposition, we do not reach Gomez-Rivera’s remaining contentions. PETITION FOR REVIEW DENIED. 2 12-72970