JIMENEZ ORDONEZ v. BARR (2019)

MEMORANDUM **

Gilberto Jimenez Ordonez, a native and citizen of Guatemala, petitions for review of the Board of Immigration Appeals’ order denying his motion to reopen removal proceedings conducted in absentia. Our jurisdiction is governed by 8 U.S.C. § 1252. We review for abuse of discretion the denial of a motion to reopen. Mohammed v. Gonzales, 400 F.3d 785, 791 (9th Cir. 2005). We deny in part and dismiss in part the petition for review.

The agency did not abuse its discretion or violate due process in denying Jimenez Ordonez’s motion to reopen as untimely, where he filed the motion more than three years after his final administrative order of removal, and he did not show due diligence for equitable tolling of the filing deadline. See 8 C.F.R. § 1003.23(b)(1), (b)(4)(ii); 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 lack jurisdiction to consider Jimenez Ordonez’s unexhausted due process contention regarding service of his notice of hearing. See Tijani v. Holder, 628 F.3d 1071, 1080 (9th Cir. 2010) (the court lacks jurisdiction to consider legal claims not presented in an alien’s administrative proceedings before the agency).

PETITION FOR REVIEW DENIED in part; DISMISSED in part.