Eufracio-Pardo v. Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: October 19, 2023
• Docket: 22-1844
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS OCT 19 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

CARLOS EUFRACIO-PARDO, No. 22-1844 Agency No. Petitioner, A075-753-384 v. MEMORANDUM* MERRICK B. GARLAND, Attorney General,

Respondent.

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

Submitted October 10, 2023**

Before: S.R. THOMAS, McKEOWN, and HURWITZ, Circuit Judges.

Carlos Eufracio-Pardo, a native and citizen of Mexico, petitions pro se for

review of the Board of Immigration Appeals’ (“BIA”) order denying his motion to

reopen removal proceedings. Our jurisdiction is governed by 8 U.S.C. § 1252. We

review for abuse of discretion the denial of a motion to reopen. Najmabadi v.

* 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). Holder, 597 F.3d 983, 986 (9th Cir. 2010). We deny in part and dismiss in part the

petition for review.

The BIA did not abuse its discretion in denying petitioner’s untimely motion

to reopen for failure to demonstrate he acted with the due diligence required for

equitable tolling. See 8 U.S.C. § 1229a(c)(7)(C)(i) (motion to reopen must be filed

within ninety days of the final removal order); Singh v. Holder, 658 F.3d 879, 884

(9th Cir. 2011) (“To qualify for equitable tolling on account of ineffective

assistance of counsel, a petitioner must demonstrate […] that he demonstrated due

diligence in discovering counsel’s fraud or error.”); Avagyan v. Holder, 646 F.3d

672, 679 (9th Cir. 2011) (factors relevant to diligence inquiry).

The record does not support Eufracio-Pardo’s contentions that the BIA

failed to consider evidence, ignored arguments, or otherwise erred in its analysis of

his claims. See Najmabadi v. Holder, 597 F.3d 983, 990 (9th Cir. 2010) (agency

need not write an exegesis on every contention); Fernandez v. Gonzales, 439 F.3d

592, 603 (9th Cir. 2006) (petitioner did not overcome presumption that BIA

reviewed the record). Eufracio-Pardo’s contention that the agency violated due

process by not asking him if he had a claim for asylum separate from his parents is

not properly before the court because he failed to raise it before the BIA. See

8 U.S.C. § 1252(d)(1) (exhaustion of administrative remedies required); see also

2 22-1844 Santos-Zacaria v. Garland, 598 U.S. 411, 417-19 (2023) (section 1252(d)(1) is a

non-jurisdictional claim-processing rule).

We generally lack jurisdiction to review the BIA’s decision not to reopen

proceedings sua sponte. See Lona v. Barr, 958 F.3d 1225, 1227 (9th Cir. 2020)

(denial of sua sponte reopening is committed to agency discretion and

unreviewable).

The temporary stay of removal remains in place until the mandate issues.

PETITION FOR REVIEW DENIED in part; DISMISSED in part.

3 22-1844