De Paz Franco v. Garland

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS NOV 22 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT CARLOS HUMBERTO DE PAZ No. 22-1774 FRANCO, Agency No. A071-585-624 Petitioner, v. MEMORANDUM* MERRICK B. GARLAND, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted November 14, 2023** Before: SILVERMAN, WARDLAW, and TALLMAN, Circuit Judges. Carlos Humberto De Paz Franco, a native and citizen of Guatemala, 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. * 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). § 1252. We review for abuse of discretion the denial of a motion to reopen. Najmabadi v. Holder, 597 F.3d 983, 986 (9th Cir. 2010). We deny the petition for review. Because De Paz Franco does not challenge the agency’s determination that he was not prima facie eligible for relief, we do not address it. See Lopez-Vasquez v. Holder, 706 F.3d 1072, 1079-80 (9th Cir. 2013). De Paz Franco’s contention that equitable tolling excuses his untimely motion to reopen is not properly before the court because he failed to raise it in his motion to reopen before the BIA. See 8 U.S.C. § 1252(d)(1) (exhaustion of administrative remedies required); see also Santos-Zacaria v. Garland, 598 U.S. 411, 417-19 (2023) (section 1252(d)(1) is a non-jurisdictional claim-processing rule). The temporary stay of removal remains in place until the mandate issues. PETITION FOR REVIEW DENIED. 2 22-1774