NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUN 24 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT MAY YE, No. 20-71148 Petitioner, Agency No. A023-781-126 v. MEMORANDUM* MERRICK B. GARLAND, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted June 11, 2021** Pasadena, California Before: MURGUIA, BADE, and LEE, Circuit Judges. May Ye, a native and citizen of Cambodia, challenges the denial of his motion to reopen and the Board of Immigration Appeals’ (“BIA”) dismissal of Ye’s appeal of an immigration judge’s (“IJ”) denial of sua sponte reopening. Our jurisdiction is governed by 8 U.S.C. § 1252. Because the BIA adopted the IJ’s * 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). decision under Matter of Burbano, 20 I. & N. Dec. 872 (BIA 1994), and provided its own reasoning, “we review both the IJ’s and the BIA’s decisions.” See Ali v. Holder, 637 F.3d 1025, 1028 (9th Cir. 2011). We deny the petition in part and dismiss it in part. 1. Ye asserts that the denial of his motion to reopen as untimely was erroneous. We review the denial of a motion to reopen for abuse of discretion. Luna v. Holder, 659 F.3d 753, 758 (9th Cir. 2011). Ye sought reopening based on the successful withdrawal of the guilty plea that he entered in 2005 for violation of section 69.50.401 of the Revised Code of Washington, which resulted in the conviction that made him removable. Both the BIA and IJ applied the correct legal standard and did not err in concluding that Ye is not entitled to equitable tolling because the record supports that he failed to show he acted with due diligence. See Lona v. Barr, 958 F.3d 1225, 1230, 1232 (9th Cir. 2020). Ye did not sufficiently explain why he waited approximately eight years to move to withdraw his guilty plea. While Ye asserts that Washington law required that he wait about fifteen years after he pleaded guilty in 2005 to seek vacation of the conviction, Ye did not ultimately seek to vacate his conviction under Washington law. Instead, in 2018, he sought withdrawal of his guilty plea under Padilla v. Kentucky, 559 U.S. 356 (2010), and Ye failed to articulate how Washington law affected his ability do so. 2 Accordingly, we deny this portion of the petition because the record supports that Ye is not entitled to equitable tolling, rendering his motion to reopen untimely. 2. Ye also argues that the IJ violated his due process rights by stating that he could not “ignore [the] reality that it is much easier to persuade a judge to vacate a conviction some thirteen years after the fact.” However, Ye does not clearly articulate how this comment violated his due process rights or …
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