Jose Sancen Serrato v. William Barr

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUN 13 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

JOSE SANCEN SERRATO, No. 16-70020

Petitioner, Agency No. A075-476-100

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

Respondent.

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

Submitted June 11, 2019**

Before: WALLACE, FARRIS, and TROTT, Circuit Judges.

Jose Sancen Serrato, a native and citizen of Mexico, 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. We

have jurisdiction under 8 U.S.C. § 1252. We review for abuse of discretion the

* 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). denial of a motion to reopen. Lin v. Holder, 588 F.3d 981, 984 (9th Cir. 2009). We

deny the petition for review.

The agency did not abuse its discretion in denying as untimely Sancen

Serrato’s motion to the Immigration Judge to reopen his case, where the motion

was filed more than 90 days after his final order of removal. See 8 C.F.R. §

1003.23(b)(1). Moreover, as recognized by the BIA, he “did not assert any

arguments regarding [equitable tolling] in his motion; nor does the record indicate

that equitable tolling is appropriate.” Sancen Serrato has not sufficiently explained

why he did not timely file the motion, and thus has not demonstrated that he

warrants equitable tolling of the filing deadline. See Avagyan v. Holder, 646 F.3d

672, 679 (9th Cir. 2011) (equitable tolling is available to an alien who is prevented

from filing a motion to reopen due to deception, fraud, or error, as long as the alien

exercises due diligence in discovering such circumstances).

In light of our disposition, we do not reach Sancen Serrato’s remaining

contentions regarding his prior counsel’s competence, prejudice resulting from his

prior counsel’s performance, or compliance with the procedural requirements of

Matter of Lozada, 19 I. & N. Dec. 637 (BIA 1988). See Simeonov v. Ashcroft, 371

F.3d 532, 538 (9th Cir. 2004) (courts and agencies are not required to decide issues

unnecessary to the results they reach).

2 16-70020 PETITION FOR REVIEW DENIED.

3 16-70020