                            NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                            FOR THE NINTH CIRCUIT                              JUL 10 2014

                                                                          MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS

JORGE ALBERTO CHAMU ANTUNEZ,                     No. 12-73830

              Petitioner,                        Agency No. A095-296-670

  v.
                                                 MEMORANDUM*
ERIC H. HOLDER, Jr., Attorney General,

              Respondent.


                     On Petition for Review of an Order of the
                         Board of Immigration Appeals

                             Submitted May 9, 2014**
                             San Francisco, California

Before: D.W. NELSON, LEAVY, and THOMAS, Circuit Judges.

       Petitioner Jorge Alberto Chamu Antunez (“Chamu”), a native and citizen of

Mexico, petitions for review of the Board of Immigration Appeals’ (“BIA”)

dismissal of his appeal from an immigration judge’s (“IJ”) denial of his motion to

reopen. We have jurisdiction under 8 U.S.C. § 1252, and we deny the petition.

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Because the parties are familiar with the history of the case, we need not recount it

here.

        We review the agency’s denial of a motion to reopen for an abuse of

discretion. Lin v. Holder, 588 F.3d 981, 984 (9th Cir. 2009).

        The BIA did not abuse its discretion in concluding that Chamu’s motion to

reopen was untimely and not subject to either a timeliness exception or equitable

tolling. A motion to reopen must be filed within 90 days of the decision the alien

seeks to reopen. 8 U.S.C. § 1229a(c)(7)(C)(i). Chamu’s claim was untimely

because it was filed 9 years after his application for cancellation of removal was

denied and he was granted voluntary departure. Chamu does not claim any

statutory exception to the time limitation. 8 U.S.C. § 1229a(c)(7)(C)(ii)–(iv).

        Chamu instead contends that the deadline should be tolled because he

suffered ineffective assistance of counsel during his original removal proceeding.

But, because Chamu failed to raise this claim before the IJ in his motion to reopen,

the BIA correctly concluded he waived the issue on appeal. In re J-Y-C-, 24 I. &

N. Dec. 260, 261 n.1 (BIA 2007). Chamu argues his ineffective assistance of

counsel claim was not waived because he was denied due process and prejudiced

when the IJ issued her decision without providing him the opportunity to

supplement his skeletal motion. Yet, an IJ is not required to set or extend time


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limits for filings, see 8 C.F.R. § 1003.31(c), and Chamu did not keep the court

apprised of his medical condition or request more time for further review of the

record of proceeding. Chamu relies on Yeghiazaryan v. Gonzales, 439 F.3d 994,

999 (9th Cir. 2006), wherein we held that the BIA denied the petitioner due process

by denying a skeletal motion to reopen within a week of its filing. That case,

however, is distinguishable. There, the petitioner filed his skeletal motion to

reopen within the 90-day time limitation, the motion put the agency on notice of

the grounds for reopening, the IJ denied the motion prior to the end of the 90-day

period, and the petitioner ultimately filed a supplemental brief and complete

evidence to support his ineffective assistance of counsel claim. Id. Chamu’s

motion fails to meet any of these criteria.

      Additionally, the BIA did not abuse its discretion in concluding that Chamu

failed to establish prima facie eligibility for relief from removal or that he merited

reopening in the exercise of discretion. The BIA may deny a motion to reopen

where the movant has not established a prima facie case for the underlying

substantive relief sought. In re Coelho, 20 I. & N. Dec. 464, 473 (BIA 1992)

(citing INS v. Doherty, 502 U.S. 314, 323 (1992)). Chamu could not prove

eligibility for any relief from removal where his failure to voluntarily depart on

February 10, 2003, subjected him to a statutory 10-year bar from relief. 8 U.S.C. §


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1229c(d)(1); 8 C.F.R. § 1240.26(a); Granados-Oseguera v. Mukasey, 546 F.3d

1011, 1015–16 (9th Cir. 2008) (per curiam) (holding that because motion to reopen

was filed after expiration of voluntary departure period, BIA was compelled to

deny the motion). Moreover, even if a movant establishes prima facie eligibility

for relief, the agency may, in its discretion, deny a motion to reopen. 8 C.F.R. §

1003.2(a); 8 C.F.R. § 1003.23(b)(3); Doherty, 502 U.S. at 323. Here, the BIA did

not abuse its discretion by adopting the IJ’s conclusion that Chamu did not warrant

a favorable exercise of discretion after weighing Chamu’s residence in the United

States and hardship on his family against his lack of “due diligence or willingness

to comply with the immigration laws.”

      We lack jurisdiction to review the BIA’s decision not to invoke its sua

sponte authority to reopen proceedings. 8 C.F.R. § 1003.2(a); Singh v. Holder, 658

F.3d 879, 884 n.6 (9th Cir. 2011).

      PETITION DENIED.




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