                              NOT FOR PUBLICATION                         FILED
                    UNITED STATES COURT OF APPEALS                         JUL 22 2019
                                                                      MOLLY C. DWYER, CLERK
                                                                        U.S. COURT OF APPEALS
                              FOR THE NINTH CIRCUIT

FERNANDO CHAVEZ-MIER, AKA                       No.    17-73128
Fernando Chavez,
                                                Agency No. A077-339-803
                Petitioner,

 v.                                             MEMORANDUM*

WILLIAM P. BARR, Attorney General,

                Respondent.

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

                               Submitted July 17, 2019**
                                 Seattle, Washington

Before: O'SCANNLAIN, KLEINFELD, and FRIEDLAND, Circuit Judges.

      Fernando Chavez-Mier (“Chavez”) petitions for review of an order by the

Board of Immigration Appeals (“BIA”) denying his motions to reopen and sua

sponte reopen. We review the denial of a motion to reopen for abuse of discretion,

asking whether the BIA acted “arbitrarily, irrationally, or contrary to the law” or


      *
             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).
otherwise “fail[ed] to provide a reasoned explanation for its actions.” Tadevosyan

v. Holder, 743 F.3d 1250, 1252-53 (9th Cir. 2014) (quoting Movsisian v. Ashcroft,

395 F.3d 1095, 1098 (9th Cir. 2005)). We review denials of motions to sua sponte

reopen, however, only to the extent that the BIA relied on an incorrect legal or

constitutional premise in deciding whether there were “exceptional circumstances”

warranting reopening. Bonilla v. Lynch, 840 F.3d 575, 588 (9th Cir. 2016).

      Chavez first argues that the BIA erred in applying the 90-day statutory time

limit to his motion to reopen. He contends that the underlying deportation

proceedings did not result in a lawfully executed deportation because they were

based on a constitutionally defective state conviction, and that this automatically

entitles him to reopening. See 8 U.S.C. § 1229a(c)(7)(C)(i). But Chavez points to

no authority showing that the 90-day statutory filing period for motions to reopen

does not apply if the underlying deportation order was based on an invalid

conviction, and we conclude that it does apply.

      Chavez argues that, even if that deadline applies, he is entitled to equitable

tolling because an immigration official told him to wait for ten years before

reapplying for lawful status. The BIA’s conclusion that Chavez did not exercise

due diligence so is not entitled to equitable tolling was not arbitrary, irrational, or

contrary to law. See Bonilla, 840 F.3d at 583. The BIA appropriately held that

Chavez failed to exercise due diligence when he did not contact an immigration


                                            2
lawyer to verify the advice he allegedly received from the immigration official

anytime during the eight years following his removal. See id. (holding that the

BIA did not err in denying equitable tolling where the petitioner waited six years

before filing a motion to reopen following a pro bono immigration lawyer’s advice

to “wait a few years”).1

      Chavez further contends that the BIA erred in failing to give “full faith and

credit” to the California state superior court’s vacatur of his state criminal

conviction, which required the state court to find that Chavez had exercised due

diligence in pursuing relief. Read charitably, Chavez seems to be asking us to hold

that the Government is collaterally estopped from arguing that Chavez did not

diligently pursue relief. See White v. City of Pasadena, 671 F.3d 918, 926-27 (9th

Cir. 2012) (explaining California law on collateral estoppel). But Chavez has not

demonstrated that the state court’s criteria for demonstrating due diligence in

criminal conviction vacatur proceedings is identical to the criteria that the BIA

requires to show diligence warranting equitable tolling of motions to reopen, nor

has he demonstrated that the party against whom he asserts preclusion (the United

States) is the same as the party he opposed in the state court proceeding



      1
         The Government noted in its brief that even though Chavez is not entitled
to reopening, he may be eligible for other relief given that he has waited the 10
years following removal required to allow him to pursue a new I-130 visa petition
through his U.S. citizen girlfriend.

                                           3
(California). Id. at 927. Accordingly, he cannot show that the requirements for

collateral estoppel are satisfied.

      Finally, Chavez argues that the BIA legally erred in denying his motion to

sua sponte reopen by contravening a settled course of adjudication in cases of

petitioners seeking reopening based on a vacated criminal conviction, warranting

remand under Bonilla. This argument fails in light of our decision in Menendez-

Gonzalez v. Barr, --- F.3d ---, No. 15-73869, 2019 WL 3022376, at *5 (9th Cir.

July 11, 2019).

      Petition for review DENIED.




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