Opinion
18-70167
10-20-2022
NOE DE JESUS SANDOVAL, Petitioner, v. MERRICK B. GARLAND, Attorney General, Respondent.
NOT FOR PUBLICATION
This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.
On Petition for Review of an Order of the Board of Immigration Appeals Agency No. A070-942-972
Before: SILVERMAN, GRABER, and BENNETT, Circuit Judges.
MEMORANDUM
Noe De Jesus Sandoval, a native and citizen of El Salvador, petitions for review of the Board of Immigration Appeals' ("BIA") order denying his motion to reopen removal proceedings and reissue its prior decision. Our jurisdiction is governed by 8 U.S.C. § 1252. We review for abuse of discretion the denial of a motion to reopen. Najmabadi v. Holder, 597 F.3d 983, 986 (9th Cir. 2010). We deny in part and dismiss in part the petition for review.
The BIA did not abuse its discretion in denying as untimely Sandoval's motion to reopen based on ineffective assistance of counsel where Sandoval filed the motion over 90 days after his final order of removal, and he failed to comply with the procedural requirements of Matter of Lozada, 19 I. &N. Dec. 637 (BIA 1988). See 8 U.S.C. § 1229a(c)(7)(C)(i); Singh v. Holder, 658 F.3d 879, 884 (9th Cir. 2011) (requirements for equitable tolling on account of ineffective assistance of counsel); Tamang v. Holder, 598 F.3d 1083, 1089-91 (9th Cir. 2010) (failure to satisfy Matter of Lozada requirements was fatal where ineffectiveness was not plain on the face of the record).
We lack jurisdiction to review the BIA's decision not to reopen proceedings sua sponte. See Lona v. Barr, 958 F.3d 1225, 1227 (9th Cir. 2020) (this court's review of the BIA's denial of sua sponte reopening is limited to legal or constitutional error).
PETITION FOR REVIEW DENIED in part; DISMISSED in part.
The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).