Jose Alonso Tena-Cisneros v. MERRICK B. GARLAND, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOSE ALONSO TENA-CISNEROS,
Petitioner,
v.
MERRICK B. GARLAND, Attorney
General,
Respondent.
No. 20-70261
Agency No. A089-926-400
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted June 15, 2022**
Before: SILVERMAN, WATFORD, and FORREST, Circuit Judges.
Jose Alonso Tena-Cisneros, a native and citizen of Mexico, petitions 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.
Our jurisdiction is governed by 8 U.S.C. § 1252. We review for abuse of
* 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
JUN 23 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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2 20-70261
discretion the denial of a motion to reopen. Iturribarria v. INS, 321 F.3d 889, 894
(9th Cir. 2003). We deny in part and dismiss in part the petition for review.
The agency did not abuse its discretion in denying Tena-Cisneros’ motion to
reopen as untimely, where it was filed more than nine years after the order of
removal became final, see 8 U.S.C. § 1229a(c)(7)(C)(i), and Tena-Cisneros failed
to establish that he acted with the due diligence required for equitable tolling, see
Iturribarria, 321 F.3d at 897 (equitable tolling is available “when a petitioner is
prevented from filing because of deception, fraud, or error, as long as the petitioner
acts with due diligence”).
We lack jurisdiction to review the agency’s determination not to reopen
proceedings sua sponte. See Bonilla v. Lynch, 840 F.3d 575, 588 (9th Cir. 2016)
(“[T]his court has jurisdiction to review Board decisions denying sua sponte
reopening for the limited purpose of reviewing the reasoning behind the decisions
for legal or constitutional error.”).
The temporary stay of removal remains in place until issuance of the
mandate.
PETITION FOR REVIEW DENIED in part; DISMISSED in part.

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