                                                                            FILED
                             NOT FOR PUBLICATION                            DEC 14 2015

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



                              FOR THE NINTH CIRCUIT


JACIEL RODARTE-VENEGAS,                          No. 13-73442

               Petitioner,                       Agency No. A095-758-926

 v.
                                                 MEMORANDUM*
LORETTA E. LYNCH, Attorney General,

               Respondent.


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

                             Submitted December 9, 2015**

Before:        WALLACE, RAWLINSON, and IKUTA, Circuit Judges.

      Jaciel Rodarte-Venegas, a native and citizen of Mexico, petitions for review

of the Board of Immigration Appeals’ order dismissing his appeal from an

immigration judge’s decision denying his motion to reopen removal proceedings

conducted in absentia. Our jurisdiction is governed by 8 U.S.C. § 1252. We


          *
             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).
review for abuse of discretion the denial of a motion to reopen. Avagyan v.

Holder, 646 F.3d 672, 674 (9th Cir. 2011). We deny in part and dismiss in part the

petition for review.

      The agency did not abuse its discretion in denying the motion to reopen as

untimely, where Rodarte-Venegas received proper notice of the hearing, filed his

motion to reopen more than three years after his final order of removal, and failed

to establish that he acted with the due diligence required for equitable tolling of the

filing deadline. See 8 U.S.C. § 1229a(b)(5)(C), (c)(7)(C)(i) (setting deadlines for

motions to reopen); id. at (b)(5)(A) (allowing written notice to alien’s counsel of

record); Avagyan, 646 F.3d at 679 (describing due diligence).

      We lack jurisdiction to review the agency’s decision not to reopen sua

sponte. See Go v. Holder, 744 F.3d 604, 609-10 (9th Cir. 2014).

      We also lack jurisdiction to consider Rodarte-Venegas’ contention that his

case warrants a favorable exercise of prosecutorial discretion. See Vilchiz-Soto v.

Holder, 688 F.3d 642, 644 (9th Cir. 2012) (order).

      In light of our disposition, we need not reach Rodarte-Venegas’ remaining

contentions.

      PETITION FOR REVIEW DENIED in part; DISMISSED in part.




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