Arturo Lara-Aguilera v. Jefferson Sessions

FILED
NOT FOR PUBLICATION
SEP 15 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

ARTURO LARA-AGUILERA, No. 15-70626

Petitioner, Agency No. A072-291-522

v.
MEMORANDUM*
JEFFERSON B. SESSIONS III, Attorney
General,

Respondent.

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

Argued and Submitted August 31, 2017
Pasadena, California

Before: W. FLETCHER and IKUTA, Circuit Judges, and BARKER,** District
Judge.

Arturo Lara-Aguilera (Lara) petitions for review of two orders issued by the

Board of Immigration Appeals (BIA) on February 25, 2015: (1) an order

*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Sarah Evans Barker, United States District Judge for
the Southern District of Indiana, sitting by designation.
dismissing Lara’s appeal of a 2014 termination of removal proceedings by the IJ;

and (2) an order denying Lara’s motion to reopen his 1996 removal proceedings.

The IJ’s order terminating removal proceedings was not a final order of

removal; it neither ruled that Lara was deportable nor ordered deportation. See 8

U.S.C. § 1101(a)(47)(A); Galindo-Romero v. Holder, 640 F.3d 873, 877 (9th Cir.

2011). The BIA’s order dismissing Lara’s appeal of the termination order did not

have the effect of reinstating a prior order of removal. Cf. Lolong v. Gonzales, 484

F.3d 1173, 1177 (9th Cir. 2007). In the absence of a final order of removal, we

lack jurisdiction to review the petition. See 8 U.S.C. § 1252(a); Galindo-Romero,

640 F.3d at 881.1

The BIA did not err in denying Lara’s motion to reopen the 1996 removal

proceedings. The motion was untimely, see 8 U.S.C. § 1229a(c)(7)(C)(i), and Lara

is not entitled to equitable tolling of the time period to file a motion to reopen

because he failed to show due diligence, see Iturribarria v. INS, 321 F.3d 889, 897

(9th Cir. 2003). Among other things, Lara failed to provide an updated address

despite being repeatedly instructed to do so, and failed to pursue the status of his

appeal for over 15 years. Nor did the BIA err in rejecting Lara’s claim that he

1
Because we lack jurisdiction over the BIA’s order dismissing Lara’s appeal
of the termination order, we do not consider Lara’s argument that the Government
is equitably estopped from terminating removal.
2
demonstrated materially changed conditions in Mexico under 8 U.S.C. §

1229a(c)(7)(C)(ii). Lara did not submit or even cite the 1996 State Department

report to the IJ and BIA, either in his 1996 proceedings when he proceeded pro se

or in his November 2014 motion to reopen. We are “statutorily prevented from

taking judicial notice of the Country Report” that an applicant failed to submit to

the BIA, Fisher v. INS, 79 F.3d 955, 963 (9th Cir. 1996) (en banc), and therefore

Lara has not shown “whether circumstances have changed sufficiently that a

petitioner who previously did not have a legitimate claim” for relief now has such a

claim. Malty v. Ashcroft, 381 F.3d 942, 945 (9th Cir. 2004).

Petition Dismissed in Part and Denied in Part