NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUL 22 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT FERNANDO CHAVEZ-MIER, AKA No. 17-73128 Fernando Chavez, Agency No. A077-339-803 Petitioner, v. MEMORANDUM* WILLIAM P. BARR, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted July 17, 2019** Seattle, Washington Before: O'SCANNLAIN, KLEINFELD, and FRIEDLAND, Circuit Judges. Fernando Chavez-Mier (“Chavez”) petitions for review of an order by the Board of Immigration Appeals (“BIA”) denying his motions to reopen and sua sponte reopen. We review the denial of a motion to reopen for abuse of discretion, asking whether the BIA acted “arbitrarily, irrationally, or contrary to the law” or * 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). otherwise “fail[ed] to provide a reasoned explanation for its actions.” Tadevosyan v. Holder, 743 F.3d 1250, 1252-53 (9th Cir. 2014) (quoting Movsisian v. Ashcroft, 395 F.3d 1095, 1098 (9th Cir. 2005)). We review denials of motions to sua sponte reopen, however, only to the extent that the BIA relied on an incorrect legal or constitutional premise in deciding whether there were “exceptional circumstances” warranting reopening. Bonilla v. Lynch, 840 F.3d 575, 588 (9th Cir. 2016). Chavez first argues that the BIA erred in applying the 90-day statutory time limit to his motion to reopen. He contends that the underlying deportation proceedings did not result in a lawfully executed deportation because they were based on a constitutionally defective state conviction, and that this automatically entitles him to reopening. See 8 U.S.C. § 1229a(c)(7)(C)(i). But Chavez points to no authority showing that the 90-day statutory filing period for motions to reopen does not apply if the underlying deportation order was based on an invalid conviction, and we conclude that it does apply. Chavez argues that, even if that deadline applies, he is entitled to equitable tolling because an immigration official told him to wait for ten years before reapplying for lawful status. The BIA’s conclusion that Chavez did not exercise due diligence so is not entitled to equitable tolling was not arbitrary, irrational, or contrary to law. See Bonilla, 840 F.3d at 583. The BIA appropriately held that Chavez failed to exercise due diligence when he did not contact an immigration 2 lawyer to verify the advice he allegedly received from the immigration official anytime during the eight years following his removal. See id. (holding that the BIA did not err in denying equitable tolling where the petitioner waited six years before filing a motion to reopen following a pro bono immigration lawyer’s advice to “wait a few years”).1 Chavez further contends that the BIA erred in failing to give “full faith and credit” to the California state superior court’s vacatur of his state criminal conviction, which required the state court to ...
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