Edgar Magana-Garcia v. Eric Holder, Jr.

485 F. App'x 274

• Court: Court of Appeals for the Ninth Circuit
• Decided: October 15, 2012
• Docket: 11-70380
• Status: Unpublished

Opinion

MEMORANDUM **

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. 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.

** This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.