Dora Del Carmen Cortez De Ortiz v. MERRICK B. GARLAND, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DORA DEL CARMEN CORTEZ DE
ORTIZ,
Petitioner,
v.
MERRICK B. GARLAND, Attorney
General,
Respondent.
No. 20-70568
Agency No. A070-162-057
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted October 12, 2021**
Before: TALLMAN, RAWLINSON, and BUMATAY, Circuit Judges.
Dora Del Carmen Cortez De Ortiz, a native and citizen of El Salvador,
petitions for review of the Board of Immigration Appeals’ (“BIA”) order denying
her motion to reopen removal proceedings. Our jurisdiction is governed by 8
U.S.C. § 1252. We review for abuse of discretion the BIA’s denial of a motion to
* 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 15 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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reopen, and we review de novo questions of law and due process 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 BIA did not abuse its discretion in denying Cortez De Ortiz’s second
motion to reopen as untimely and number-barred where it was filed over a decade
after the order of removal became final, see 8 U.S.C. § 1229a(c)(7)(A), (C)(i); 8
C.F.R. § 1003.2(c)(2), and where Cortez De Ortiz failed to demonstrate changed
country conditions in El Salvador to qualify for a regulatory exception to the time
and number limitations, see 8 C.F.R. § 1003.2(c)(3)(ii); Najmabadi v. Holder, 597
F.3d 983, 991-92 (9th Cir. 2010) (BIA did not abuse its discretion in denying
motion to reopen where petitioner failed to introduce material evidence of changed
country conditions).
To the extent Cortez De Ortiz contends the BIA abused its discretion in
declining to equitably toll the time and number limitations, her contention fails
because Cortez De Ortiz did not establish the due diligence required for equitable
tolling. See 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 . . . due diligence in discovering counsel’s fraud or error . . . .”);
Avagyan v. Holder, 646 F.3d 672, 679 (9th Cir. 2011) (listing factors relevant to
the due diligence inquiry).

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Because the untimeliness of the motion is dispositive, we do not reach
Cortez De Ortiz’s remaining contentions regarding eligibility for relief and due
process.
We lack jurisdiction to review the BIA’s determination not to reopen
proceedings sua sponte. See Mejia-Hernandez v. Holder, 633 F.3d 818, 823-24
(9th Cir. 2011); cf. 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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