NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS OCT 29 2024

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

FERNANDO ALONSO GAMEZ- No. 23-1395 MONTOYA, Agency No.

A202-013-861

Petitioner,

v. MEMORANDUM*

MERRICK B. GARLAND, Attorney General,

Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals

Submitted October 21, 2024** Phoenix, Arizona

Before: TASHIMA, M. SMITH, and BADE, Circuit Judges.

Fernando Gamez-Montoya (Gamez-Montoya), a native and citizen of

Mexico, petitions for review of a decision of the Board of Immigration Appeals

(BIA) denying his motion to reopen his immigration proceedings. Through the

* 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). motion, Gamez-Montoya sought administrative closure pending adjudication of his

wife’s U-1 nonimmigrant petition, of which Gamez-Montoya is the beneficiary.

Because the parties are familiar with the facts of this case, we do not recount them

here except as necessary to provide context to our ruling. We have jurisdiction to

review the BIA’s denial of the motion pursuant to 8 U.S.C. § 1252, and we deny the

petition for review.

1. The BIA did not abuse its discretion in denying Gamez-Montoya’s

motion as untimely. Gamez-Montoya acknowledged that his motion was time-

barred. Further, the BIA correctly declined to apply equitable tolling because

Gamez-Montoya failed to show that he filed his motion with “due diligence,” Luna

v. Holder, 659 F.3d 753, 759 (9th Cir. 2011) (citation omitted), and did not present

“affidavits or other evidentiary material,” 8 C.F.R. § 1003.2(c)(1), in support of his

request for tolling. This result is not changed by Gamez-Montoya’s claim that he

waited to file his motion until after “the pendency of [his] petition for review of an

order of removal.” Dela Cruz v. Mukasey, 532 F.3d 946, 949 (9th Cir. 2008) (per

curiam); see, e.g., Tsadourian v. Holder, 333 F. App’x 236, 237 (9th Cir. 2009).

2. Nor did the BIA abuse its discretion in finding that, even if the motion

were not untimely, Gamez-Montoya failed to establish that reopening was

warranted. The BIA correctly reasoned that if Gamez-Montoya were granted a visa

by virtue of his wife’s U visa petition, he could file a motion to reopen and

2 23-1395 administratively close his immigration proceedings at that time. See 8 C.F.R. §

214.14(c)(5)(i). The BIA also correctly determined that Gamez-Montoya failed to

demonstrate prima facie eligibility for a U visa because he did not show that his

wife’s U visa petition was likely to be successful. See INS v. Doherty, 502 U.S. 314,

323 (1992); see, e.g., Vigil-Carballo v. Barr, 812 F. App’x 553, 554 (9th Cir. 2020).

3. We lack jurisdiction to review the BIA’s denial of sua sponte reopening

because it “was not premised on legal or constitutional error.” Lona v. Barr, 958

F.3d 1225, 1228 (9th Cir. 2020). Gamez-Montoya does not contend otherwise. See

Castro-Perez v. Gonzales, 409 F.3d 1069, 1072 (9th Cir. 2005) (arguments not

raised in a petition for review are waived). Similarly, we lack jurisdiction to review

the BIA’s denial of administrative closure in the exercise of prosecutorial discretion.

Vilchiz-Soto v. Holder, 688 F.3d 642, 644 (9th Cir. 2012).

PETITION DENIED.

3 23-1395