DAVID VARELA BUSTAMANTE V. MERRICK GARLAND, No. 20-71061 (9th Cir. 2021)

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NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS FILED SEP 16 2021 MOLLY C. DWYER, CLERK FOR THE NINTH CIRCUIT DAVID VARELA BUSTAMANTE, Petitioner, v. No. U.S. COURT OF APPEALS 20-71061 Agency No. A200-709-283 MEMORANDUM* MERRICK B. GARLAND, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted September 14, 2021** Before: PAEZ, NGUYEN, and OWENS, Circuit Judges. David Varela Bustamante, native and citizen of Mexico, petitions for review of the Board of Immigration Appeals’ (“BIA”) order denying his motion to reopen removal proceedings. Our jurisdiction is governed by 8 U.S.C. § 1252. We review for abuse of discretion the BIA’s denial of a motion to reopen. Bonilla v. Lynch, * 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). 840 F.3d 575, 581 (9th Cir. 2016). We deny in part and dismiss in part the petition for review. The BIA did not abuse its discretion in denying as untimely Varela Bustamante’s motion to reopen where it was filed more than three years after the order of removal became final. See 8 C.F.R. § 1003.2(c)(2). We lack jurisdiction to consider Varela Bustamante’s contentions regarding equitable tolling because he did not raise them to the BIA. See Barron v. Ashcroft, 358 F.3d 674, 677-78 (9th Cir. 2004) (court lacks jurisdiction to review claims not presented to the agency). We also lack jurisdiction to review the agency’s decision not to reopen removal proceedings sua sponte. See Bonilla, 840 F.3d at 588 (“[T]his court has jurisdiction to review Board decisions denying sua sponte reopening for the limited purpose of reviewing the reasoning behind the decisions for legal or constitutional error.”). PETITION FOR REVIEW DENIED in part; DISMISSED in part. 2 20-71061

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