NOT FOR PUBLICATION FILED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