Maximino Perez-Torres v. Jefferson Sessions , 678 F. App'x 548 ( 2017 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS FEB 23 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MAXIMINO PEREZ-TORRES, AKA No. 15-72418
Maximino Peres Torres, AKA Maximino
Perez, Agency No. A077-975-201
Petitioner,
MEMORANDUM*
v.
JEFFERSON B. SESSIONS, III, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted February 14, 2017**
Before: GOODWIN, FARRIS, and FERNANDEZ, Circuit Judges.
Maximino Perez-Torres, a native and citizen of Mexico, petitions for review
of the Board of Immigration Appeals’ (“BIA”) order denying his motion to reopen
removal proceedings. Our jurisdiction is governed by 8 U.S.C. § 1252. We review
*
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).
for abuse of discretion the denial of a motion to reopen. Avagyan v. Holder, 646
F.3d 672, 682 (9th Cir. 2011). We deny in part and dismiss in part the petition for
review.
The BIA did not abuse its discretion in denying Perez-Torres’s motion to
reopen as untimely, where he filed the motion over nine years after his final order
of removal, see 8 C.F.R. § 1003.2(c)(2), and he has not demonstrated the due
diligence necessary to warrant equitable tolling of the filing deadline, see Avagyan,
646 F.3d at 679 (equitable tolling is available to an alien who is prevented from
filing a motion to reopen due to deception, fraud, or error, as long as the alien
exercises due diligence in discovering such circumstances).
The BIA did not err in concluding that a motion to reopen a 2014
immigration judge decision from separate proceedings was not properly before it.
Hernandez v. Holder, 738 F.3d 1099, 1102 (9th Cir. 2013) (recognizing the BIA's
non-jurisdictional place-of-filing rule).
We do not consider the extra-record documentation that Perez-Torres
submitted with his opening brief because it was not part of the administrative
record. See 8 U.S.C.A. § 1252(b)(4)(A)(judicial review is limited to the
administrative record); Dent v. Holder, 627 F.3d 365, 371 (9th Cir. 2010) (stating
standard of review for out-of-record evidence).
2 15-72418
In light of this disposition, we do not reach Perez-Torres’s remaining
contentions regarding ineffective assistance of counsel.
PETITION FOR REVIEW DENIED in part; DISMISSED in part.
3 15-72418