FILED
NOT FOR PUBLICATION OCT 15 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
EDGAR RENE MAGANA-GARCIA, No. 11-70380
Petitioner, Agency No. A029-171-248
v.
MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted October 9, 2012 **
Before: RAWLINSON, MURGUIA, and WATFORD, Circuit Judges.
Edgar Rene Magana-Garcia, a native and citizen of El Salvador, petitions for
review of the Board of Immigration Appeals’ (“BIA”) order denying his motion to
reopen proceedings. Our jurisdiction is governed by 8 U.S.C. § 1252. We review
de novo claims of constitutional violations in immigration proceedings.
*
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).
Iturribarria v. INS, 321 F.3d 889, 894 (9th Cir. 2003). We dismiss in part and
deny in part the petition for review.
The BIA denied Magana-Garcia’s motion as untimely, and declined to
exercise its sua sponte authority to reopen removal proceedings under 8 C.F.R.
§ 1003.2(a). We lack jurisdiction to review the BIA’s discretionary decision
whether to exercise its sua sponte authority. See Mejia-Hernandez v. Holder, 633
F.3d 818, 823-824 (9th Cir. 2011).
Magana-Garcia’s equal protection challenge to the BIA’s refusal to grant
reopening is unavailing. See Dillingham v. INS, 267 F.3d 996, 1007 (9th Cir.
2001) (“In order to succeed on his [equal protection] challenge, the petitioner must
establish that his treatment differed from that of similarly situated persons.”),
overruled on other grounds by Nunez-Reyes v. Holder, 646 F.3d 684 (9th Cir.
2011).
Magana-Garcia has waived any challenge to the BIA’s determination that he
is not entitled to equitable tolling for alleged ineffective assistance of counsel. See
Martinez-Serrano v. INS, 94 F.3d 1256, 1259-60 (9th Cir. 1996) (issues not raised
in the opening brief are waived).
PETITION FOR REVIEW DISMISSED in part; DENIED in part.
2 11-70380