Carlos Eufracio-Pardo v. MERRICK B. GARLAND, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CARLOS EUFRACIO-PARDO,
Petitioner,
v.
MERRICK B. GARLAND, Attorney
General,
Respondent.
No. 22-1844
Agency No.
A075-753-384
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted October 10, 2023**
Before: S.R. THOMAS, McKEOWN, and HURWITZ, Circuit Judges.
Carlos Eufracio-Pardo, a native and citizen of Mexico, petitions pro se for
review of the Board of Immigration Appeals’ (“BIA”) order denying his motion to
reopen removal proceedings. 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.
* 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
OCT 19 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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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 petitioner’s untimely motion
to reopen for failure to demonstrate he acted with the due diligence required for
equitable tolling. See 8 U.S.C. § 1229a(c)(7)(C)(i) (motion to reopen must be filed
within ninety days of the final removal order); Singh v. Holder, 658 F.3d 879, 884
(9th Cir. 2011) (“To qualify for equitable tolling on account of ineffective
assistance of counsel, a petitioner must demonstrate […] that he demonstrated due
diligence in discovering counsel’s fraud or error.”); Avagyan v. Holder, 646 F.3d
672, 679 (9th Cir. 2011) (factors relevant to diligence inquiry).
The record does not support Eufracio-Pardo’s contentions that the BIA
failed to consider evidence, ignored arguments, or otherwise erred in its analysis of
his claims. See Najmabadi v. Holder, 597 F.3d 983, 990 (9th Cir. 2010) (agency
need not write an exegesis on every contention); Fernandez v. Gonzales, 439 F.3d
592, 603 (9th Cir. 2006) (petitioner did not overcome presumption that BIA
reviewed the record). Eufracio-Pardo’s contention that the agency violated due
process by not asking him if he had a claim for asylum separate from his parents is
not properly before the court because he failed to raise it before the BIA. See
8 U.S.C. § 1252(d)(1) (exhaustion of administrative remedies required); see also

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Santos-Zacaria v. Garland, 598 U.S. 411, 417-19 (2023) (section 1252(d)(1) is a
non-jurisdictional claim-processing rule).
We generally 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)
(denial of sua sponte reopening is committed to agency discretion and
unreviewable).
The temporary stay of removal remains in place until the mandate issues.
PETITION FOR REVIEW DENIED in part; DISMISSED in part.

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