Moises Velasquez-Medina v. William Barr

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 23, 2019
• Docket: 17-70553
• Status: Unpublished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NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAY 23 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

MOISES VELASQUEZ-MEDINA, No. 17-70553

Petitioner, Agency No. A088-892-353

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.

Moises Velasquez-Medina, a native and citizen of El Salvador, petitions for

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

reopen. We have jurisdiction under U.S.C. § 1252. We review for abuse of

discretion the denial of a motion to reopen, and review de novo questions of law.

Mohammed v. Gonzales, 400 F.3d 785, 791-92 (9th Cir. 2005). We deny 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). petition for review.

The BIA did not abuse its discretion in denying as untimely Velasquez-

Medina’s motion to reopen based on ineffective assistance of counsel and new

eligibility for asylum and related relief, where he filed the motion more than three

years after his final administrative order of removal, he did not show due diligence

for equitable tolling of the filing deadline, and he did not show that the motion was

subject to any exceptions to the deadline. See 8 C.F.R. § 1003.2(c)(2)-(3) (subject

to exceptions, a motion to reopen must be filed no later than 90 days after the date

of the final administrative decision); 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 reject Velasquez-Medina’s contention that the BIA failed to address his

request for reopening based on new eligibility for asylum and related relief. The

BIA addressed the timeliness of his motion and did not need to address changed

country conditions because this exception was not raised in his brief to the BIA.

See 8 C.F.R. § 1003.2(c)(2)-(3); 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).

Because these determinations are dispositive, we do not reach Velasquez-

2 17-70553 Medina’s remaining contentions regarding compliance with the procedural

requirements of Matter of Lozada, 19 I. & N. Dec. 637 (BIA 1988), and whether

he was prejudiced by prior counsel’s alleged ineffective assistance. See Simeonov,

371 F.3d at 538.

PETITION FOR REVIEW DENIED.

3 17-70553