Vargas Ruiz v. Gonzales

123 F. App'x 793

Opinion

MEMORANDUM

****

Martias Vargas Ruiz, a native and citizen of Mexico, petitions for review of the denial by the Board of Immigration Appeals (BIA) of his motion for reconsideration of its decision denying his motion to reopen his immigration proceedings. We dismiss this petition for lack of jurisdiction.

We lack jurisdiction to consider Ruiz’s argument that equitable tolling or equitable estoppel applies to the filing deadline for his motion to reopen because he failed to raise any such issue or to set forth facts that would have alerted the BIA to any such claim. Cf. Socop-Gonzalez v. INS, 272 F.3d 1176 (9th Cir.2001) (en banc). Ruiz’s only argument to the BIA was that his July 18, 2002 motion was timely because it was filed within 90 days of the Board’s “latest decision” (rendered April 19, 2002) even though the regulations require that motions to reopen be filed no later than 90 days after the final administrative decision was rendered (February 7, 2002). Although the BIA recognized that the motion to reopen was filed as a result of advice given in a concurring opinion, neither Ruiz’s motion to reopen nor his motion for reconsideration gave any hint that a late filing should be excused for reasons having to do with equitable tolling, Socop-Gonzalez, 272 F.3d at 1184-85, or equitable estoppel, Mukherjee v. INS, 793 F.2d 1006, 1008-09 (9th Cir.1986). There is no suggestion of “affirmative misconduct” by the government here, and Ruiz has not shown why he could not have ascertained the correct filing deadline through reasonable diligence. See SocopGonzalez, 272 F.3d at 1184-85. Indeed, a motion to reopen could not have been timely filed in any event, because Ruiz’s son did not turn 21 until after the 90-day period provided by the regulations had expired. 8 C.F.R. § 3.2(c)(2).

We also lack jurisdiction to consider whether the BIA should have found exceptional circumstances sua sponte to grant the motion to reopen. Ekimian v. INS, 303 F.3d 1153, 1159 (9th Cir.2002).

PETITION DISMISSED.

xhis disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.