Jorge Luis Barrera-Cartagena v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: July 22, 2022
• Docket: 21-666
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUL 22 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

Jorge Luis Barrera-Cartagena, No. 21-666 Petitioner, Agency No. A097-866-492 v. Merrick B. Garland, U.S. Attorney MEMORANDUM* General, Respondent.

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

Submitted July 12, 2022**

Before: SCHROEDER, R. NELSON, and VANDYKE, Circuit Judges.

Jorge Luis Barrera-Cartagena, a native and citizen of Guatemala,

petitions pro se 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. Najmabadi v. Holder, 597 F.3d 983, 986 (9th Cir. 2010). We

deny the petition for review.

* 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). The BIA did not abuse its discretion in denying Barrera-Cartagena’s

motion to reopen as untimely, where it was filed more than five years after the

order of removal became final, see 8 U.S.C. § 1229a(c)(7)(C)(i) (requiring

motion to reopen to be filed within ninety days of final removal order), and

Barrera-Cartagena failed to establish that he acted with the due diligence

required for equitable tolling, see 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 . . . due diligence in discovering

counsel’s fraud or error. . . .”); Avagyan v. Holder, 646 F.3d 672, 679 (9th Cir.

2011) (listing factors relevant to the due diligence inquiry).

In light of this disposition, we need not reach Barrera-Cartagena’s

remaining contentions. See Simeonov v. Ashcroft, 371 F.3d 532, 538 (9th Cir.

2004) (stating that courts and agencies are not required to decide issues

unnecessary to the results they reach).

The temporary stay of removal remains in place until issuance of the

mandate. The motion for a stay of removal is otherwise denied.

PETITION FOR REVIEW DENIED.

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