Gilberto Jimenez Ordonez v. WILLIAM P. BARR, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
GILBERTO JIMENEZ ORDONEZ,
Petitioner,
v.
WILLIAM P. BARR, Attorney General,
Respondent.
No. 17-71153
Agency No. A205-056-558
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted May 21, 2019**
Before: THOMAS, Chief Judge, FRIEDLAND and BENNETT, Circuit Judges.
Gilberto Jimenez Ordonez, a native and citizen of Guatemala, petitions for
review of the Board of Immigration Appeals’ order denying his motion to reopen
removal proceedings conducted in absentia. Our jurisdiction is governed by 8
U.S.C. § 1252. We review for abuse of discretion the denial of a motion to reopen.
* 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
MAY 23 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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2 17-71153
Mohammed v. Gonzales, 400 F.3d 785, 791 (9th Cir. 2005). We deny in part and
dismiss in part the petition for review.
The agency did not abuse its discretion or violate due process in denying
Jimenez Ordonez’s motion to reopen as untimely, where he filed the motion more
than three years after his final administrative order of removal, and he did not show
due diligence for equitable tolling of the filing deadline. See 8 C.F.R.
§ 1003.23(b)(1), (b)(4)(ii); Avagyan v. Holder, 646 F.3d 672, 679 (9th Cir. 2011)
(equitable tolling is available to a petitioner who is prevented from timely filing a
motion to reopen due to deception, fraud, or error, as long as the petitioner
exercises due diligence in discovering such circumstances).
We lack jurisdiction to consider Jimenez Ordonez’s unexhausted due
process contention regarding service of his notice of hearing. See Tijani v. Holder,
628 F.3d 1071, 1080 (9th Cir. 2010) (the court lacks jurisdiction to consider legal
claims not presented in an alien’s administrative proceedings before the agency).
PETITION FOR REVIEW DENIED in part; DISMISSED in part.

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