Roberto Garcia-Rosales v. Jefferson Sessions

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS NOV 20 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT

ROBERTO GARCIA-ROSALES, AKA No. 15-72222
Javier Chavez, AKA Raul Juarez Martinez,
AKA Roberto Rosales-Piedra, Agency No. A093-487-069

Petitioner,
MEMORANDUM*
v.

JEFFERSON B. SESSIONS III, Attorney
General,

Respondent.

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

Submitted November 15, 2017**

Before: CANBY, TROTT, and GRABER, Circuit Judges.

Roberto Garcia-Rosales, 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

abuse of discretion the denial of a motion to reopen, and review de novo

*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
constitutional claims. Najmabadi v. Holder, 597 F.3d 983, 986 (9th Cir. 2010). We

deny the petition for review.

The BIA did not abuse its discretion or violate due process in denying

Garcia-Rosales’ motion to reopen as untimely, where he filed the motion more

than ten months after his final order of removal, and failed to comply with the

procedural requirements of Matter of Lozada, 19 I. & N. Dec. 637 (BIA 1988). See

8 C.F.R. § 1003.2(c)(2); Singh v. Holder, 658 F.3d 879, 884 (9th Cir. 2011)

(Lozada compliance required to qualify for equitable tolling of the filing deadline

based on ineffective assistance of counsel); Lata v. INS, 204 F.3d 1241, 1246 (9th

Cir. 2000) (requiring error and prejudice to prevail on a due process challenge).

Because the timeliness determination is dispositive, we do not consider

Garcia-Rosales’ remaining contentions regarding the alleged ineffectiveness of

prior counsel or his eligibility for relief. See Simeonov v. Ashcroft, 371 F.3d 532,

538 (9th Cir. 2004) (courts and agencies are not required to decide issues

unnecessary to the results they reach).

Garcia-Rosales’ request to stay his removal is denied as moot. The currently

effective temporary stay of removal will expire upon issuance of the mandate.

PETITION FOR REVIEW DENIED.

2 15-72222