Hipolito Nestor Chamu v. ERIC H. HOLDER, Jr., Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
HIPOLITO NESTOR CHAMU,
Petitioner,
v.
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
No. 12-71893
Agency No. A073-809-394
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted January 21, 2014**
Before: CANBY, SILVERMAN, and PAEZ, Circuit Judges.
Hipolito Nestor Chamu, a native and citizen of Mexico, petitions pro se 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 review
FILED
JAN 27 2014
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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for abuse of discretion the denial of a motion to reopen, and review de novo
constitutional 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 agency did not abuse its discretion in denying as untimely Chamu’s
motion to reopen alleging exceptional circumstances, where it was not submitted
within 180 days of the IJ’s October 8, 1999, order, see 8 C.F.R. § 1003.23(b)(4)(ii)
(an alien seeking to reopen and rescind an in absentia removal order based on
exceptional circumstances must file the motion within 180 days), and he failed to
assert that he qualified for equitable tolling of the filing deadline, see Avagyan v.
Holder, 646 F.3d 672, 678-80 (9th Cir. 2011). It follows that the agency did not
violate Chamu’s due process rights by denying the motion. See Lata v. INS, 204
F.3d 1241, 1246 (9th Cir. 2000) (requiring error and prejudice to prevail on a due
process claim).
We lack jurisdiction to review the agency’s discretionary decision not to
reopen removal proceedings sua sponte. See Mejia-Hernandez v. Holder, 633 F.3d
818, 823-24 (9th Cir. 2011).
In light of this disposition, we need not reach Chamu’s remaining
contention.
PETITION FOR REVIEW DENIED, in part; DISMISSED in part.
12-71893 2

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