Dora Cortez De Ortiz v. Merrick Garland ( 2021 )


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  •                               NOT FOR PUBLICATION                        FILED
    UNITED STATES COURT OF APPEALS                       OCT 15 2021
    MOLLY C. DWYER, CLERK
    U.S. COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    DORA DEL CARMEN CORTEZ DE                        No.   20-70568
    ORTIZ,
    Agency No. A070-162-057
    Petitioner,
    v.                                              MEMORANDUM*
    MERRICK B. GARLAND, Attorney
    General,
    Respondent.
    On Petition for Review of an Order of the
    Board of Immigration Appeals
    Submitted October 12, 2021**
    Before:      TALLMAN, RAWLINSON, and BUMATAY, Circuit Judges.
    Dora Del Carmen Cortez De Ortiz, a native and citizen of El Salvador,
    petitions for review of the Board of Immigration Appeals’ (“BIA”) order denying
    her motion to reopen removal proceedings. Our jurisdiction is governed by 
    8 U.S.C. § 1252
    . We review for abuse of discretion the BIA’s denial of a motion to
    *
    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).
    reopen, and we review de novo questions of law and due process claims.
    Mohammed v. Gonzales, 
    400 F.3d 785
    , 791-92 (9th Cir. 2005). We deny in part
    and dismiss in part the petition for review.
    The BIA did not abuse its discretion in denying Cortez De Ortiz’s second
    motion to reopen as untimely and number-barred where it was filed over a decade
    after the order of removal became final, see 8 U.S.C. § 1229a(c)(7)(A), (C)(i); 
    8 C.F.R. § 1003.2
    (c)(2), and where Cortez De Ortiz failed to demonstrate changed
    country conditions in El Salvador to qualify for a regulatory exception to the time
    and number limitations, see 
    8 C.F.R. § 1003.2
    (c)(3)(ii); Najmabadi v. Holder, 
    597 F.3d 983
    , 991-92 (9th Cir. 2010) (BIA did not abuse its discretion in denying
    motion to reopen where petitioner failed to introduce material evidence of changed
    country conditions).
    To the extent Cortez De Ortiz contends the BIA abused its discretion in
    declining to equitably toll the time and number limitations, her contention fails
    because Cortez De Ortiz did not establish the due diligence required for equitable
    tolling. See Singh v. Holder, 
    658 F.3d 879
    , 884 (9th Cir. 2011) (“To qualify for
    equitable tolling on account of ineffective assistance of counsel, a petitioner must
    demonstrate . . . due diligence in discovering counsel’s fraud or error . . . .”);
    Avagyan v. Holder, 
    646 F.3d 672
    , 679 (9th Cir. 2011) (listing factors relevant to
    the due diligence inquiry).
    2                                        20-70568
    Because the untimeliness of the motion is dispositive, we do not reach
    Cortez De Ortiz’s remaining contentions regarding eligibility for relief and due
    process.
    We lack jurisdiction to review the BIA’s determination not to reopen
    proceedings sua sponte. See Mejia-Hernandez v. Holder, 
    633 F.3d 818
    , 823-24
    (9th Cir. 2011); cf. Bonilla v. Lynch, 
    840 F.3d 575
    , 588 (9th Cir. 2016) (“[T]his
    court has jurisdiction to review Board decisions denying sua sponte reopening for
    the limited purpose of reviewing the reasoning behind the decisions for legal or
    constitutional error.”).
    The temporary stay of removal remains in place until issuance of the
    mandate.
    PETITION FOR REVIEW DENIED in part; DISMISSED in part.
    3                                     20-70568