                                                                            FILED
                             NOT FOR PUBLICATION                            NOV 28 2016

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



                             FOR THE NINTH CIRCUIT


RAFAEL ANTONIO AGUILAR-                          No.   14-71323
VASQUEZ,
                                                 Agency No. A026-761-458
              Petitioner,

 v.                                              MEMORANDUM*

LORETTA E. LYNCH, Attorney General,

              Respondent.


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

                            Submitted November 16, 2016**

Before:      LEAVY, BERZON, and MURGUIA, Circuit Judges.

      Rafael Antonio Aguilar-Vasquez, a native and citizen of El Salvador,

petitions for review of the Board of Immigration Appeals (“BIA”) order dismissing

his appeal from an immigration judge’s decisions denying his motion to reopen

and his motion to reconsider. We have jurisdiction under 8 U.S.C. § 1252. We

      *
             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).
review for abuse of discretion the denial of motions to reopen and to reconsider.

Mohammed v. Gonzales, 400 F.3d 785, 791 (9th Cir. 2005). We deny the petition

for review.

      The agency did not abuse its discretion in denying Aguilar-Vasquez’ motion

to reopen to file for Suspension of Deportation under the Nicaraguan Adjustment

and Central American Relief Act (“NACARA relief”), where Aguilar-Vasquez

filed the motion more than 13 years after the regulatory deadline, see 8 C.F.R.

§ 1003.43(e)(1), and failed to establish any error, deception or fraud warranting

equitable tolling of the deadline, see Avagyan v. Holder, 646 F.3d 672, 679 (9th

Cir. 2011) (equitable tolling is available to an alien who is prevented from timely

filing a motion to reopen due to deception, fraud or error, as long as the alien

exercises due diligence in discovering such circumstances).

      Aquilar-Vasquez did not comply with Matter of Lozada, 19 I. & N. Dec.

637 (BIA 1988), so there is no confirmation in the record that Centro Presente had

a representational relationship with petitioner at the time of the initial NACARA

deadline, or that it was aware in 2000 of his prior order of deportation and

therefore aware of the need to apply to reopen the order of deportation. Absent

such confirmation, there was substantial evidence to support the agency’s

conclusions that there was no ongoing representational relationship, and that, later,


                                           2                                       14-71323
Aguilar-Vasquez was not forthcoming with Centro Presente about his immigration

history. The agency was correct in concluding that the later ineffective assistance

by attorney Pena was not prejudicial to Aquilar-Vasquez, as the motion to reopen

he filed in 2007 in the wrong forum was too late and would not have been granted

even if properly filed.

      Aguilar-Vasquez fails to raise, and therefore has waived, any challenge to

the BIA’s dispositive determination that the motion to reconsider was properly

construed as a numerically-barred motion to reopen, where his motion presented

new evidence as opposed to identifying any error of law or fact in the prior

decision. See Lopez-Vasquez v. Holder, 706 F.3d 1072, 1079-80 (9th Cir. 2013) (a

petitioner waives a contention by failing to raise it in the opening brief);

Mohammed, 400 F.3d at 792 n.8 (“A motion to reconsider does not present new

law or facts, but rather challenges determinations of law and fact made by the

BIA.”); 8 C.F.R. § 1003.43(e)(1) (an alien may file only one motion to reopen to

apply for NACARA relief).

      Aguilar-Vasquez’ contention that the BIA engaged in improper factfinding

is not supported by the record.

      In light of this disposition, we do not reach Aguilar-Vasquez’ remaining

contentions.


                                           3                                   14-71323
PETITION FOR REVIEW DENIED.




                       4      14-71323
