Johnny Garcia-Lopez v. MERRICK B. GARLAND, U.S. Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOHNNY GARCIA-LOPEZ,
Petitioner,
v.
MERRICK B. GARLAND, U.S. Attorney
General,
Respondent.
No. 21-345
Agency No. A088-915-392
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted March 15, 2023**
Pasadena, California
Before: LEE, BRESS, MENDOZA, Circuit Judges.
Johnny Garcia-Lopez (Garcia), a native and citizen of Guatemala,
petitions for review of a decision of the Board of Immigration Appeals (BIA)
denying a motion to reopen his immigration proceedings. We review the BIA’s
denial of a motion to reopen for abuse of discretion and purely legal questions
de novo. Bonilla v. Lynch, 840 F.3d 575, 581 (9th Cir. 2016). We have
* 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).
FILED
MAR 17 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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jurisdiction under 8 U.S.C. § 1252. We deny in part and dismiss in part the
petition for review.
1. The BIA did not abuse its discretion in denying Garcia’s motion to
reopen. The Immigration and Nationality Act (INA) allows an alien to file a
single motion to reopen within 90 days of a final administrative order of
removal. 8 U.S.C. § 1229(a)(7). However, Garcia filed his motion to reopen
outside of that 90-day period. Therefore, the BIA properly deemed his motion
untimely and permissibly denied it on that ground. See Hernandez-Ortiz v.
Garland, 32 F.4th 794, 801 (9th Cir. 2022) (holding the BIA did not abuse its
discretion in refusing to allow an untimely motion to reopen).
2. Equitable tolling of the 90-day deadline is available “when ‘some
extraordinary circumstance stood in [the petitioner’s] way and prevented timely
filing,’ and he acted with ‘due diligence’ in pursuing his rights.” Hernandez-
Ortiz, 32 F.4th at 801 (quoting Lona v. Barr, 958 F.3d 1225, 1230–32 (9th Cir.
2020)). Because Garcia did not argue equitable tolling before the BIA, we lack
jurisdiction to consider it now. See 8 U.S.C. § 1252(d)(1); see also Socop-
Gonzalez v. I.N.S., 272 F.3d 1176, 1183 (9th Cir. 2001) (en banc) (“[I]f [an
alien] failed to exhaust his administrative remedies with respect to equitable
tolling, we lack jurisdiction under the INA to consider the issue on appeal.”),
overruled on other grounds by Smith v. Davis, 953 F.3d 582, 599 (9th Cir.
2020) (en banc).
Garcia argues that although he did not use the phrase “equitable tolling”

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in his motion to reopen, the BIA should have still treated him as having raised
the argument. While Garcia is not required to use particular phrasing, his
motion to reopen neither acknowledges its untimeliness, provides an
explanation for the delay, nor explains how Garcia acted with due diligence.
The BIA thus did not err in treating Garcia as not having sufficiently presented
an equitable tolling argument.
Socop-Gonzalez is not to the contrary. See id. In that case, we held that
an alien who raised equitable estoppel rather than equitable tolling in his briefs
before the agency had exhausted administrative remedies. Id. at 1186. We did
so because (1) the alien’s was mistake understandable in light of murky case
law surrounding the two equitable doctrines, and (2) the BIA had thoroughly
addressed equitable considerations in its decision, so that the concerns
underlying the exhaustion requirement had been satisfied. Id. at 1186–87.
Neither of those circumstances is present here.
PETITION DENIED IN PART AND DISMISSED IN PART.

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