NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUN 30 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT OFIR PALACIOS SANCHEZ, Nos. 20-72965 21-70750 Petitioner, Agency No. A206-855-969 v. MERRICK B. GARLAND, Attorney MEMORANDUM* General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Argued and Submitted May 18, 2023 Phoenix, Arizona Before: NGUYEN and COLLINS, Circuit Judges, and KORMAN,** District Judge. Concurrence by Judge KORMAN. Ofir Palacios Sanchez appeals the denial of his motion to file a late appeal and his subsequent motion for reconsideration and to reopen by the Board of Immigration Appeals (“BIA”). He contends that the BIA erred in concluding that * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Edward R. Korman, United States District Judge for the Eastern District of New York, sitting by designation. 1 he failed to exercise diligence in filing his appeal. We deny in part and dismiss in part the petition. 1. Palacios Sanchez seeks review of the BIA’s decision declining to certify his case for consideration on appeal. We lack jurisdiction to review the BIA’s certification decision, which is committed to the agency’s discretion. Idrees v. Barr, 923 F.3d 539, 543 (9th Cir. 2019). Thus, we dismiss the petition insofar as it challenges the certification decision. 2. The BIA properly determined that Palacios Sanchez, through his counsel, failed to exercise diligence in timely filing his appeal.1 As a preliminary matter, the BIA correctly addressed counsel’s diligence, which is one element of the equitable tolling analysis. See Holland v. Florida, 560 U.S. 631, 649 (2010). In fact, it seems the BIA charitably construed Palacios Sanchez’s motions as presenting an equitable tolling claim even though such tolling was not explicitly raised. This was not error. We have held that the BIA’s 30-day appeal filing deadline is not jurisdictional, which makes it “subject to equitable exceptions.” Irigoyen-Briones v. Holder, 644 F.3d 943, 947–48 (9th Cir. 2011). The BIA’s equitable tolling diligence analysis was therefore appropriate. 1 We need not determine whether, as Palacios Sanchez contends and as the Fourth Circuit has held, “the BIA’s decision to deny equitable tolling presents a mixed question we must review de novo.” Williams v. Garland, 59 F.4th 620, 639 (4th Cir. 2023). Even assuming that de novo review applies, we conclude that the BIA did not err in rejecting Palacios Sanchez’s initial motion to file a late appeal. 2 The BIA correctly concluded that Palacios Sanchez’s counsel fell short of his duty to exercise due diligence. In his initial motion to file a late appeal, Palacios Sanchez argued only that counsel acted diligently in re-filing after discovering FedEx’s error. In his motion for reconsideration and to reopen, he added that the COVID-19 pandemic circumstances excused counsel’s months-long delay in discovering FedEx’s error and that the BIA had accepted a late appeal in a similar case. Counsel filed Palacios Sanchez’s appeal nearly …
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