723 Fed.Appx. 464 (9th Cir. 2018), 16-72080, Soto v. Sessions

Docket Nº:16-72080
Citation:723 Fed.Appx. 464
Party Name:Carlos Javier Montanez SOTO, Petitioner, v. Jefferson B. SESSIONS III, Attorney General, Respondent.
Attorney:Jordan Harlan Schweller, Attorney, Jordan Schweller, San Diego, CA, for Petitioner John Beadle Holt, Esquire, Trial Attorney, Juria L. Jones, Trial Attorney, DOJ— U.S. Department of Justice, Civil Division/Office of Immigration Litigation, Washington, DC, Chief Counsel ICE, Office of the Chief Co...
Judge Panel:Before: SILVERMAN, BEA, and WATFORD, Circuit Judges.
Case Date:May 18, 2018
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 464

723 Fed.Appx. 464 (9th Cir. 2018)

Carlos Javier Montanez SOTO, Petitioner,

v.

Jefferson B. SESSIONS III, Attorney General, Respondent.

No. 16-72080

United States Court of Appeals, Ninth Circuit

May 18, 2018

Submitted May 15, 2018 [*]

Editorial Note:

Governing the citation to unpublished opinions please refer to federal rules of appellate procedure rule 32.1. See also U.S.Ct. of App. 9th Cir. Rule 36-3.

Jordan Harlan Schweller, Attorney, Jordan Schweller, San Diego, CA, for Petitioner

John Beadle Holt, Esquire, Trial Attorney, Juria L. Jones, Trial Attorney, DOJ— U.S. Department of Justice, Civil Division/Office of Immigration Litigation, Washington, DC, Chief Counsel ICE, Office of the Chief Counsel, Department of Homeland Security, San Francisco, CA, for Respondent

On Petition for Review of an Order of the Board of Immigration Appeals, Agency No. AXXX-XX3-017

Before: SILVERMAN, BEA, and WATFORD, Circuit Judges.

Page 465

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...

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