NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS FILED FOR THE NINTH CIRCUIT JUN 22 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS NICHOLAS VARGAS ROCHA, No. 18-72469 Petitioner, Agency No. A200-248-267 v. MEMORANDUM* MERRICK B. GARLAND, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted June 15, 2022** Pasadena, California Before: RAWLINSON and CHRISTEN, Circuit Judges, and BENNETT,*** District Judge. * 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). *** The Honorable Richard D. Bennett, United States District Judge for the District of Maryland, sitting by designation. Petitioner Nicholas Vargas Rocha (Rocha), a native and citizen of Mexico, petitions for review of a decision from the Board of Immigration Appeals (BIA) denying Rocha’s motion to reopen to pursue adjustment of status and asylum. Rocha concedes that his motion to reopen is untimely, but contends that equitable tolling applies to excuse the untimeliness due to the ineffective assistance of his former counsel. Rocha also maintains that the BIA erred when it determined that Rocha’s case was not sufficiently exceptional to warrant sua sponte reopening. Finally, Rocha argues that he was denied due process when the Immigration Judge (IJ) failed to continue his case to allow Rocha to apply for adjustment of status. To the extent we have jurisdiction, it is pursuant to 8 U.S.C. § 1252. We DENY in part and DISMISS in part the petition for review. We review the BIA’s denial of a motion to reopen for an abuse of discretion. See Rodriguez v. Garland, 990 F.3d 1205, 1209 (9th Cir. 2021). We must uphold the agency determination unless the BIA’s decision is “arbitrary, irrational, or contrary to law.” Singh v. I.N.S., 295 F.3d 1037, 1039 (9th Cir. 2002) (citation omitted). We lack jurisdiction to consider procedural constitutional arguments that are not exhausted before the BIA if “an administrative tribunal could remedy” the alleged procedural error. Barron v. Ashcroft, 358 F.3d 674, 678 (9th Cir. 2004) (citations omitted); see also Plancarte Sauceda v. Garland, 23 F.4th 824, 835 (9th 2 Cir. 2022), as amended. We retain jurisdiction to review the BIA’s denial of a motion to reopen sua sponte only for the limited purpose of identifying legal or constitutional error. See Bonilla v. Lynch, 840 F.3d 575, 581-82 (9th Cir. 2016), as amended. 1. A motion to reopen generally must be filed within 90 days of a final removal order, but may be “subject to equitable tolling due to ineffective assistance of counsel.” Flores v. Barr, 930 F.3d 1082, 1085 (9th Cir. 2019) (citation and internal quotation marks omitted). Rocha concedes that he has not complied with the requirements set forth in Matter of Lozada, 19 I. & N. Dec. 637 (BIA 1988), and the record does not reflect “a clear and obvious case of ineffective assistance” of …
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