FILED
NOT FOR PUBLICATION DEC 15 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JULIO ALEXANDER GUZMAN- No. 14-70488
VASQUEZ,
Agency No. A044-002-033
Petitioner,
v. MEMORANDUM*
LORETTA E. LYNCH, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted December 9, 2015**
Before: WALLACE, RAWLINSON, and IKUTA, Circuit Judges.
Julio Alexander Guzman-Vasquez, a native and citizen of Guatemala,
petitions for review of the Board of Immigration Appeals’ (“BIA”) order
dismissing his appeal from an immigration judge’s decision denying his motion to
reopen removal proceedings. Our jurisdiction is governed by 8 U.S.C. § 1252. We
*
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).
review for abuse of discretion the denial of a motion to reopen. Mohammed v.
Gonzales, 400 F.3d 785, 791 (9th Cir. 2005). We deny in part and dismiss in part
the petition for review.
The agency did not abuse its discretion in denying Guzman-Vasquez’
motion to reopen as untimely, where Guzman-Vasquez failed to raise in his
opening brief, and therefore has waived, any challenge to the BIA’s dispositive
determinations that his motion was untimely, and that he had failed to establish that
he was entitled to a regulatory exception to the deadline or equitable tolling of the
motions deadline. See Lopez-Vasquez v. Holder, 706 F.3d 1072, 1079-80 (9th Cir.
2013) (a petitioner waives a contention by failing to raise it in the opening brief).
We lack jurisdiction to review Guzman-Vasquez’ 2010 removal order
because this petition is not timely as to that order. See Stone v. INS, 514 U.S. 386,
405 (1995) (the deadline for filing a petition for review from a final order of
removal is “mandatory and jurisdictional”); Martinez-Serrano v. INS, 94 F.3d
1256, 1258 (9th Cir. 1996) (the court lacked jurisdiction to review underlying
order of removal, where alien did not seek timely review of that order, and instead
filed petition for review from the denial of a subsequent motion to reopen).
Guzman-Vasquez states he is not challenging the agency’s decision not to
invoke its sua sponte authority to reopen his removal proceedings but, contrary to
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Guzman-Vasquez’ contentions, a claim of “a gross miscarriage of justice” is not an
independent ground for reopening. See Mejia-Hernandez v. Holder, 633 F.3d 818,
823-24 (9th Cir. 2011) (this court lacks jurisdiction to review challenges to the
BIA’s discretionary decision not to invoke its sua sponte authority); cf. Garcia de
Rincon v. Dep’t of Homeland Sec., 539 F.3d 1133, 1138 (9th Cir. 2008) (this court
retains jurisdiction to consider a “collateral attack on an underlying removal order
during review of a reinstatement order if the petitioner can show that he has
suffered a gross miscarriage of justice in the initial deportation proceeding”
(citation and internal quotation marks omitted)).
PETITION FOR REVIEW DENIED in part; DISMISSED in part.
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