Daniel Espino-Medina v. William Barr

• Court: Court of Appeals for the Ninth Circuit
• Decided: June 12, 2019
• Docket: 16-71305
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION JUN 12 2019 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

DANIEL ESPINO-MEDINA, AKA No. 16-71305 Daniel Espino, Agency No. A073-816-758 Petitioner,

v. MEMORANDUM*

WILLIAM P. BARR, Attorney General,

Respondent.

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

Submitted June 10, 2019** Pasadena, California

Before: WARDLAW, BYBEE, and OWENS, Circuit Judges.

Daniel Espino-Medina (Espino) seeks review of the Board of Immigration

Appeals’s (BIA) order dismissing his appeal of an Immigration Judge’s (IJ)

decision denying his motion to reconsider an order of removal. We have

* 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). jurisdiction over this petition for review under 8 U.S.C. § 1252(a)(1). We review

the BIA’s conclusion that Espino’s motion was untimely filed for abuse of

discretion, Vega v. Holder, 611 F.3d 1168, 1170 (9th Cir. 2010), and we deny the

petition for review. To the extent Espino asks us to review the BIA’s decision not

to exercise its sua sponte authority to reopen the case, we lack jurisdiction and

dismiss the petition.

1. The BIA did not abuse its discretion in holding that Espino’s motion to

reconsider, filed two years and nine months after his order of removal became

final, was untimely. A motion to reconsider is untimely if it is filed more than

thirty days after the date of entry of the final administrative order of removal. 8

U.S.C. § 1229a(c)(6)(B).

Further, the BIA did not abuse its discretion in determining that the deadline

to file a motion to reconsider was not equitably tolled. We recognize “equitable

tolling of deadlines and numerical limits on motions to reopen or reconsider”

where a petitioner was prevented from timely filing “because of deception, fraud,

or error, as long as the petitioner acts with due diligence in discovering the

deception, fraud, or error.” Iturribarria v. INS, 321 F.3d 889, 897 (9th Cir. 2003).

Here, Espino has identified no deception, fraud, or error that could give rise to a

recognized claim of equitable tolling. He has not alleged that the IJ applied

2 incorrect law at the time it issued the order of removal. As an unmarried individual

at the time of his removal, Espino was not eligible for marriage-based relief, and

the IJ was under no obligation to inquire into the status of his non-marital romantic

relationship. Further, Espino has not established that he acted with due diligence

in discovering the error he alleges the IJ made.

Espino now argues that his order of removal did not become final until

immigration authorities completed reasonable-fear proceedings in 2015, based on

our decision in Ortiz-Alfaro v. Holder, 694 F.3d 955 (9th Cir. 2012). He did not

raise this argument before the agency. We thus lack jurisdiction to consider this

unexhausted argument. Sola v. Holder, 720 F.3d 1134, 1135 (9th Cir. 2013) (per

curiam).

2. Espino also asked the BIA to exercise its sua sponte authority to reopen his

case. The regulation authorizing the BIA to exercise this power, 8 C.F.R.

§ 1003.2(a), does not “provide a standard controlling or directing the BIA’s

decision whether to reopen, and similarly provides no standard for reviewing the

BIA’s decision.” Ekimian v. INS, 303 F.3d 1153, 1157–58 (9th Cir. 2002).

Because this lack of a judicially manageable standard does not permit us to

conduct meaningful appellate review, we generally lack jurisdiction to review the

BIA’s discretionary decision not to exercise this authority. Id. at 1159.

3 Here, Espino attacks the BIA’s exercise of discretion in classifying the legal

changes he cites as “incremental” rather than “fundamental” and determining that

his case was not “a gross miscarriage of justice” that warranted sua sponte

reopening. We lack jurisdiction to consider these discretionary arguments.

The petition for review is DENIED, in part, and DISMISSED, in part.