Roberto Garcia-Rosales v. Jefferson Sessions

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS NOV 20 2017 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT ROBERTO GARCIA-ROSALES, AKA No. 15-72222 Javier Chavez, AKA Raul Juarez Martinez, AKA Roberto Rosales-Piedra, Agency No. A093-487-069 Petitioner, MEMORANDUM* v. JEFFERSON B. SESSIONS III, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted November 15, 2017** Before: CANBY, TROTT, and GRABER, Circuit Judges. Roberto Garcia-Rosales, a native and citizen of Mexico, petitions for review of the Board of Immigration Appeals’ (“BIA”) order denying his motion to reopen removal proceedings. We have jurisdiction under 8 U.S.C. § 1252. We review for abuse of discretion the denial of a motion to reopen, and review de novo * 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). constitutional claims. Najmabadi v. Holder, 597 F.3d 983, 986 (9th Cir. 2010). We deny the petition for review. The BIA did not abuse its discretion or violate due process in denying Garcia-Rosales’ motion to reopen as untimely, where he filed the motion more than ten months after his final order of removal, and failed to comply with the procedural requirements of Matter of Lozada, 19 I. & N. Dec. 637 (BIA 1988). See 8 C.F.R. § 1003.2(c)(2); Singh v. Holder, 658 F.3d 879, 884 (9th Cir. 2011) (Lozada compliance required to qualify for equitable tolling of the filing deadline based on ineffective assistance of counsel); Lata v. INS, 204 F.3d 1241, 1246 (9th Cir. 2000) (requiring error and prejudice to prevail on a due process challenge). Because the timeliness determination is dispositive, we do not consider Garcia-Rosales’ remaining contentions regarding the alleged ineffectiveness of prior counsel or his eligibility for relief. See Simeonov v. Ashcroft, 371 F.3d 532, 538 (9th Cir. 2004) (courts and agencies are not required to decide issues unnecessary to the results they reach). Garcia-Rosales’ request to stay his removal is denied as moot. The currently effective temporary stay of removal will expire upon issuance of the mandate. PETITION FOR REVIEW DENIED. 2 15-72222 15-72222 Court of Appeals for the Ninth Circuit ca9 9th Cir. Roberto Garcia-Rosales v. Jefferson Sessions 20 November 2017 Agency Unpublished d3cc55107891e1aad94a7994faec339e9aa9310a

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