Olivares v. Gonzales

MEMORANDUM ** Joel Sanchez Olivares seeks review of the Board of Immigration Appeals’ (“BIA”) order denying his motion to reopen removal proceedings. To the extent we have jurisdiction, it is conferred by 8 U.S.C. § 1252 . We review for abuse of discretion the denial of a motion to reopen. Iturribarria v. INS, 321 F.3d 889, 894 (9th Cir.2003). We review de novo claims of constitutional violations in immigration proceedings. Ram v. INS, 243 F.3d 510, 516 (9th Cir.2001). We deny in part and dismiss in part the petition for review. The BIA did not abuse its discretion in denying Sanchez Olivares’ motion to reopen as untimely because it was filed more than six months after the BIA’s final order of removal, see 8 U.S.C. § 1229a(c)(7)(C)(i) (motion to reopen must be filed within ninety days of final order of removal), and Sanchez Olivares did not show he was entitled to equitable tolling, see Iturribarria, 321 F.3d at 897 (9th Cir.2003) (deadline for filing motion to reopen can be equitably tolled “when petitioner is prevented from filing because of deception, fraud, or error, as long as the petitioner acts with due diligence.”). To the extent Sanchez Olivares contends that the BIA failed to consider some or all of the evidence he submitted with the motion to reopen, he has not overcome the presumption that the BIA did review the record. See Fernandez v. Gonzales, 439 F.3d 592, 603 (9th Cir.2006). Sanchez Olivares’ equal protection challenge to the Nicaraguan Adjustment and Central American Relief Act (“NACARA”) is foreclosed by Jimenez-Angeles v. Ashcroft, 291 F.3d 594, 602-03 (9th Cir.2002) (rejecting equal protection challenge to NACARA’s favorable treatment of aliens from some countries over those from other countries). We lack jurisdiction to review the BIA’s decision not to invoke its sua sponte authority to reopen proceedings under 8 C.F.R. § 1003.2 (a). See Ekimian v. INS, 303 F.3d 1153, 1159 (9th Cir.2002). We lack jurisdiction to review the BIA’s underlying order dismissing Sanchez Olivares’ direct appeal from the immigration judge’s decision because this petition for review is not timely as to that order. See Singh v. INS, 315 F.3d 1186, 1188 (9th Cir.2003). PETITION FOR REVIEW DENIED in part; DISMISSED in part. This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.