Tulio Madrid Leiva v. Jefferson Sessions, III

• Court: Court of Appeals for the Ninth Circuit
• Decided: October 29, 2018
• Docket: 17-70590
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS OCT 29 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

TULIO MADRID LEIVA, AKA Tulio Rene No. 17-70590 Madrid Leiva, Agency No. A070-217-455 Petitioner,

v. MEMORANDUM*

JEFFERSON B. SESSIONS III, Attorney General,

Respondent.

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

Submitted October 22, 2018**

Before: SILVERMAN, GRABER, and GOULD, Circuit Judges.

Tulio Madrid Leiva, a native and citizen of Guatemala, petitions 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, and review de novo questions

* 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). of law. Mohammed v. Gonzales, 400 F.3d 785, 791-92 (9th Cir. 2005). We deny

the petition for review.

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

Madrid Leiva’s motion to reopen as untimely, where he filed the motion more than

four years after his final administrative order of removal, and did not show that

equitable tolling of the filing deadline was warranted. See 8 C.F.R. § 1003.2(c)(2);

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); Lata v. INS, 204 F.3d 1241, 1246 (9th Cir. 2000)

(requiring error and substantial prejudice to prevail on a due process claim). We

reject Madrid Leiva’s contention that the BIA ignored arguments he raised in his

motion. See Najmabadi v. Holder, 597 F.3d 983, 990 (9th Cir. 2010) (the BIA

must “merely . . . announce its decision in terms sufficient to enable a reviewing

court to perceive that it has heard and thought and not merely reacted” (citation

omitted)).

In light of our disposition, we do not reach Madrid Leiva’s remaining

contentions regarding the IJ’s alleged failure to adjudicate an asylum application,

and the alleged ineffective assistance of counsel. See Simeonov v. Ashcroft, 371

2 17-70590 F.3d 532, 538 (9th Cir. 2004) (courts and agencies are not required to decide issues

unnecessary to the results they reach).

PETITION FOR REVIEW DENIED.

3 17-70590