Edgar Rene Magana-Garcia v. ERIC H. HOLDER, Jr., Attorney General

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).
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
EDGAR RENE MAGANA-GARCIA,
Petitioner,
v.
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
No. 11-70380
Agency No. A029-171-248
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted October 9, 2012**
Before: RAWLINSON, MURGUIA, and WATFORD, Circuit Judges.
Edgar Rene Magana-Garcia, a native and citizen of El Salvador, petitions for
review of the Board of Immigration Appeals’ (“BIA”) order denying his motion to
reopen proceedings. Our jurisdiction is governed by 8 U.S.C. § 1252. We review
de novo claims of constitutional violations in immigration proceedings.
FILED
OCT 15 2012
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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11-70380 2
Iturribarria v. INS, 321 F.3d 889, 894 (9th Cir. 2003). We dismiss in part and
deny in part the petition for review.
The BIA denied Magana-Garcia’s motion as untimely, and declined to
exercise its sua sponte authority to reopen removal proceedings under 8 C.F.R.
§ 1003.2(a). We lack jurisdiction to review the BIA’s discretionary decision
whether to exercise its sua sponte authority. See Mejia-Hernandez v. Holder, 633
F.3d 818, 823-824 (9th Cir. 2011).
Magana-Garcia’s equal protection challenge to the BIA’s refusal to grant
reopening is unavailing. See Dillingham v. INS, 267 F.3d 996, 1007 (9th Cir.
2001) (“In order to succeed on his [equal protection] challenge, the petitioner must
establish that his treatment differed from that of similarly situated persons.”),
overruled on other grounds by Nunez-Reyes v. Holder, 646 F.3d 684 (9th Cir.
2011).
Magana-Garcia has waived any challenge to the BIA’s determination that he
is not entitled to equitable tolling for alleged ineffective assistance of counsel. See
Martinez-Serrano v. INS, 94 F.3d 1256, 1259-60 (9th Cir. 1996) (issues not raised
in the opening brief are waived).
PETITION FOR REVIEW DISMISSED in part; DENIED in part.

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