SOTO v. SESSIONS III (2018)

MEMORANDUM **

Carlos Javier Montanez Soto, a native and citizen of Mexico, petitions for review of the Board of Immigration Appeals’ order dismissing his appeal from an immigration judge’s decision 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. Martinez-Hernandez v. Holder, 778 F.3d 1086, 1088 (9th Cir. 2015). We deny the petition for review.

The agency did not abuse its discretion in denying Montanez Soto’s motion to reopen as untimely, where he conceded the motion was filed past the 90-day filing deadline, see 8 C.F.R. § 1003.23(b)(1), and he provided no evidence of due diligence for equitable tolling of the deadline, see Avagyan v. Holder, 646 F.3d 672, 679 (9th Cir. 2011) (equitable tolling is available to an alien who is prevented from timely filing a motion to reopen due to deception, fraud, or error, as long as the alien exercises due diligence in discovering such circumstances); Carrillo-Gonzalez v. INS, 353 F.3d 1077, 1079 (9th Cir. 2003) (statements by counsel are not evidence).

In light of this disposition, we do not address Montanez Soto’s contentions regarding compliance with Matter of Lozada, 19 I. & N. Dec. 637 (BIA 1988).

PETITION FOR REVIEW DENIED.