Susana Plancarte-De Padilla v. Loretta E. Lynch , 671 F. App'x 634 ( 2016 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 20 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
SUSANA PLANCARTE-DE PADILLA No. 14-72416
Petitioner, Agency No. A074-575-062
v.
LORETTA E. LYNCH, Attorney General, MEMORANDUM*
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted December 14, 2016**
Before: WALLACE, LEAVY, and FISHER, Circuit Judges.
Susana Plancarte-De Padilla, a native and citizen of Mexico, petitions for
review of the Board of Immigration Appeals’ (“BIA”) order dismissing her appeal
from an immigration judge’s (“IJ”) order denying her motion to reopen removal
proceedings. Our jurisdiction is governed by 8 U.S.C. § 1252. We review for
*
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).
abuse of discretion the denial of a motion to reopen and review de novo questions
of law. Najmabadi v. Holder, 597 F.3d 983, 986 (9th Cir. 2010). We deny in part
and dismiss in part the petition for review.
The agency did not abuse its discretion in denying Plancarte-De Padilla’s
motion to reopen as untimely, where it was filed 14 years after her final order of
removal, see 8 C.F.R. § 1003.23 (b)(1), and Plancarte-De Padilla failed to establish
the due diligence required for equitable tolling of the filing deadline, see Avagyan,
646 F.3d at 679 (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
petitioner exercises due diligence in discovering such circumstances).
Plancarte-De Padilla’s contention that the BIA failed to apply the doctrine of
equitable tolling is not supported by the record.
To the extent Plancarte-De Padilla is challenging the IJ’s sua sponte
determination, we lack jurisdiction to review this unexhausted contention. See
Tijani v. Holder, 628 F.3d 107, 7081 (9th Cir. 2010) (“We lack jurisdiction to
review legal claims not presented in an alien’s administrative proceedings before
the BIA.”).
PETITION FOR REVIEW DENIED in part; DISMISSED in part.
2 14-72416