United States v. 2020-02-10 | 18-72965 | ESAUN TORRES V. WILLIAM BARR | nonprecedential | memorandum disposition |

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ESAUN TORRES, AKA Esau Torres
Medina,

Petitioner,

v.

WILLIAM P. BARR, Attorney General,

Respondent.

No. 18-72965

Agency No. A070-967-454

MEMORANDUM
*

On Petition for Review of an Order of the
Board of Immigration Appeals

Submitted February 4, 2020
**

Before: FERNANDEZ, SILVERMAN, and TALLMAN, Circuit Judges.

Esaun Torres, a native and citizen of Mexico, petitions for review of the
Board of Immigration Appeals’ (“BIA”) order denying his motion to reopen and
reconsider. Our jurisdiction is governed by 8 U.S.C. § 1252. We review for abuse
of discretion the denial of a motion to reopen or reconsider. Mohammed 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

FEB 10 2020

MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

2 18-72965
Gonzales, 400 F.3d 785, 791 (9th Cir. 2005). We deny in part and dismiss in part
the petition for review.
The BIA did not abuse its discretion in denying Torres’s motion to reopen
and reconsider as untimely because the motion was filed over six years after the
order of removal became final, see 8 U.S.C. § 1229a(c)(6)(B), (7)(C)(i) (motion to
reconsider must be filed within 30 days of final order of removal; motion to reopen
must be filed within 90 days of final order of removal), and Torres has not
established that any statutory or regulatory exception applies, see 8 U.S.C.
§ 1229a(c)(7)(C); 8 C.F.R. § 1003.2(c)(3), or that the deadline should be equitably
tolled, see Mejia-Hernandez v. Holder, 633 F.3d 818, 824 (9th Cir. 2011) (deadline
may be equitably tolled “when a petitioner is prevented from filing because of
deception, fraud, or error, as long as the petitioner acts with due diligence in
discovering the deception, fraud, or error”).
We lack jurisdiction to review the BIA’s determination not to reopen
proceedings sua sponte. See Mejia-Hernandez, 633 F.3d at 823-24; cf. Bonilla v.
Lynch, 840 F.3d 575, 588 (9th Cir. 2016).
Because these determinations are dispositive, we do not reach Torres’s
contentions regarding due process or eligibility for relief.
We deny Torres’s motion to supplement the record on appeal. See
Barrientos v. Lynch, 829 F.3d 1064, 1067 n.1 (9th Cir. 2016) (“As a general

3 18-72965
matter, we cannot consider extra-record evidence. We must limit our review of the
merits of [the] petition to ‘the administrative record on which the order of removal
is based.’” (citing 8 U.S.C. § 1252(b)(4)(A))).
PETITION FOR REVIEW DENIED in part; DISMISSED in part.