David Chavez-Macias v. Loretta E. Lynch

MEMORANDUM

Fabian Fragoso-Gonzalez, a native and citizen of Mexico, petitions for review of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an immigration judge’s (“IJ”) order 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. Avagyan v. Holder, 646 F.3d 672, 678 (9th Cir. 2011). We deny the petition for review.

The agency did not abuse its discretion in denying Fragoso-Gonzalez’s motion to reopen as untimely, where the motion was filed more than 14 years after the IJ’s final order of removal, see 8 C.F.R. § 1003.2 (c)(2), and Fragoso-Gonzalez 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).

Because the timeliness determination is dispositive, we do not address Fragoso-Gonzalez’s contention that the BIA used the incorrect legal standard to analyze whether he…