Marvin Obando v. Eric Holder, Jr., No. 14-1312 (4th Cir. 2014)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 14-1312 MARVIN ANTONIO OBANDO, a/k/a Marvin Antonio Toledo, Petitioner, v. ERIC H. HOLDER, JR., Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals. Submitted: December 12, 2014 Decided: December 18, 2014 Before WILKINSON, KING, and SHEDD, Circuit Judges. Petition denied by unpublished per curiam opinion. Timothy W. Davis, LAW OFFICE OF TIMOTHY W. DAVIS, LLC, Baltimore, Maryland, for Petitioner. Joyce R. Branda, Acting Assistant Attorney General, John S. Hogan, Senior Litigation Counsel, Roger Thomas Severino, Office of Immigration Litigation, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Marvin Salvador, Antonio petitions Immigration immigration for Appeals Obando, review (“Board”) judge’s (“IJ”) a of native an order dismissing order and citizen of his denying the appeal of El Board of from the reopening rescission of the in absentia order of removal. and We deny the petition for review. We review the denial of a motion to reopen for abuse of discretion. 8 C.F.R. § 1003.23(b)(1)(iv) (2014); INS v. Doherty, 502 U.S. 314, 323-24 (1992); Barry v. Gonzales, 445 F.3d 741, 744 (4th Cir. 2006). We will reverse the denial of a motion to reopen only if the denial is “arbitrary, capricious, or contrary to law.” marks omitted). Barry, 445 F.3d at 745 (internal quotation Because Obando waited twelve years to file his motion to reopen and rescind, he must show that he is eligible for equitable tolling. See Kuusk v. Holder, 732 F.3d 302, 305 (4th Cir. 2013) (the principles of equitable tolling apply to the time limits for motions to reopen). We conclude that the record does not support the finding that it was “impossible” for Obando to have acted earlier. Id. We further conclude that substantial evidence supports the finding that Obando was not diligent in seeking relief from the removal order. See Neves v. Holder, 613 F.3d 30, 33 (1st Cir. 2010) (whether Petitioner was 2 diligent in seeking relief is reviewed for substantial evidence). Obando also claims he was denied due process because the Board did not consider his claim that the IJ erred denying sua sponte reopening. We find this claim to be without merit because the Board clearly considered the IJ’s decision, albeit in a footnote and without the analysis Obando was hoping for. Also, Obando’s contention that the IJ’s denial of sua sponte reopening was supported by sponte an the reopening error as record. was a a matter Because matter jurisdiction to review it. of of the law is decision discretion, we clearly to deny are not sua without See Mosere v. Mukasey, 552 F.3d 397, 400-01 (4th Cir. 2009). Accordingly, dispense with contentions are oral we deny argument adequately the petition because presented in the the for facts review. We and legal materials before this court and argument would not aid the decisional process. PETITION DENIED 3