Jaciel Rodarte-Venegas v. LORETTA E. LYNCH, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JACIEL RODARTE-VENEGAS,
Petitioner,
v.
LORETTA E. LYNCH, Attorney General,
Respondent.
No. 13-73442
Agency No. A095-758-926
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted December 9, 2015**
Before: WALLACE, RAWLINSON, and IKUTA, Circuit Judges.
Jaciel Rodarte-Venegas, a native and citizen of Mexico, petitions for review
of the Board of Immigration Appeals’ order dismissing his appeal from an
immigration judge’s decision denying his motion to reopen removal proceedings
conducted in absentia. Our jurisdiction is governed by 8 U.S.C. § 1252. We
FILED
DEC 14 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).

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review for abuse of discretion the denial of a motion to reopen. Avagyan v.
Holder, 646 F.3d 672, 674 (9th Cir. 2011). We deny in part and dismiss in part the
petition for review.
The agency did not abuse its discretion in denying the motion to reopen as
untimely, where Rodarte-Venegas received proper notice of the hearing, filed his
motion to reopen more than three years after his final order of removal, and failed
to establish that he acted with the due diligence required for equitable tolling of the
filing deadline. See 8 U.S.C. § 1229a(b)(5)(C), (c)(7)(C)(i) (setting deadlines for
motions to reopen); id. at (b)(5)(A) (allowing written notice to alien’s counsel of
record); Avagyan, 646 F.3d at 679 (describing due diligence).
We lack jurisdiction to review the agency’s decision not to reopen sua
sponte. See Go v. Holder, 744 F.3d 604, 609-10 (9th Cir. 2014).
We also lack jurisdiction to consider Rodarte-Venegas’ contention that his
case warrants a favorable exercise of prosecutorial discretion. See Vilchiz-Soto v.
Holder, 688 F.3d 642, 644 (9th Cir. 2012) (order).
In light of our disposition, we need not reach Rodarte-Venegas’ remaining
contentions.
PETITION FOR REVIEW DENIED in part; DISMISSED in part.
2 13-73442

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