Gilberto Jimenez Ordonez v. William Barr

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 23, 2019
• Docket: 17-71153
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAY 23 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

GILBERTO JIMENEZ ORDONEZ, No. 17-71153

Petitioner, Agency No. A205-056-558

v. MEMORANDUM* WILLIAM P. BARR, Attorney General,

Respondent.

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

Submitted May 21, 2019**

Before: THOMAS, Chief Judge, FRIEDLAND and BENNETT, Circuit Judges.

Gilberto Jimenez Ordonez, a native and citizen of Guatemala, petitions for

review of the Board of Immigration Appeals’ order denying his motion to reopen

removal proceedings conducted in absentia. Our jurisdiction is governed by 8

U.S.C. § 1252. We review for abuse of discretion the denial of a motion to reopen.

* 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). Mohammed v. Gonzales, 400 F.3d 785, 791 (9th Cir. 2005). We deny in part and

dismiss in part the petition for review.

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

Jimenez Ordonez’s motion to reopen as untimely, where he filed the motion more

than three years after his final administrative order of removal, and he did not show

due diligence for equitable tolling of the filing deadline. See 8 C.F.R.

§ 1003.23(b)(1), (b)(4)(ii); Avagyan v. Holder, 646 F.3d 672, 679 (9th Cir. 2011)

(equitable tolling is available to a petitioner who is prevented from timely filing a

motion to reopen due to deception, fraud, or error, as long as the petitioner

exercises due diligence in discovering such circumstances).

We lack jurisdiction to consider Jimenez Ordonez’s unexhausted due

process contention regarding service of his notice of hearing. See Tijani v. Holder,

628 F.3d 1071, 1080 (9th Cir. 2010) (the court lacks jurisdiction to consider legal

claims not presented in an alien’s administrative proceedings before the agency).

PETITION FOR REVIEW DENIED in part; DISMISSED in part.

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