Jose Aguirre v. Loretta E. Lynch

605 F. App'x 653

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 21, 2015
• Docket: 13-72832
• Status: Unpublished

Opinion

MEMORANDUM **

Jose Luis Aguirre, a native and citizen of El Salvador, petitions for review of the Board of Immigration Appeals’ order dismissing his appeal from an immigration judge’s order denying his motion to reopen removal proceedings conducted in absentia. We have jurisdiction under 8 U.S.C. § 1252. We review for abuse of discretion the denial of a motion to reopen. Avagyan v. Holder, 646 F.3d 672, 674 (9th Cir.2011). We deny the petition for review.

The agency did not abuse its discretion by denying as untimely Aguirre’s motion to reopen where he filed the motion approximately two years after issuance of his order of removal in absentia, see 8 C.F.R. § 1003.23(b)(4)(ii), and failed to demonstrate the due diligence necessary to warrant equitable tolling of the filing deadline, see Iturribarria v. INS, 321 F.3d 889, 897 (9th Cir.2003) (equitable tolling is available “when a petitioner is prevented from filing because of deception, fraud, or error, as long as the petitioner acts with due diligence in discovering the deception, fraud, or error”); Avagyan, 646 F.3d at 679 (diligence requires petitioner to “take reasonable steps to investigate [any] suspected fraud” or make “reasonable efforts to pursue relief’).

In light of this disposition, we need not reach Aguirre’s remaining contentions regarding ineffective assistance of counsel. See Mendez-Alcaraz v. Gonzales, 464 F.3d 842, 844 (9th Cir.2006) (declining to reach nondispositive challenges to a BIA order).

PETITION FOR REVIEW DENIED.

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