                              NOT FOR PUBLICATION                        FILED
                    UNITED STATES COURT OF APPEALS                        JAN 18 2019
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                              FOR THE NINTH CIRCUIT

FERMIN GONZALEZ VASQUEZ,                         No.   17-72804

                Petitioner,                      Agency No. A070-669-661

 v.
                                                 MEMORANDUM*
MATTHEW G. WHITAKER, Acting
Attorney General,

                Respondent.

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

                              Submitted January 15, 2019**


Before:      TROTT, TALLMAN, and CALLAHAN, Circuit Judges.

      Fermin Gonzalez Vasquez, a native and citizen of Guatemala, petitions for

review of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal

from an immigration judge’s order denying his motion to reopen deportation

proceedings conducted in absentia. We have jurisdiction under 8 U.S.C. § 1252.


      *
             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).
We review for abuse of discretion the denial of a motion to reopen, and we review

de novo constitutional claims. Mohammed v. Gonzales, 400 F.3d 785, 791-92 (9th

Cir. 2005). We deny the petition for review.

      The agency did not abuse its discretion or violate due process in denying

Gonzalez Vasquez’s motion to reopen as untimely, where he filed it 21 years after

his final order of deportation, and he failed to show diligence for equitable tolling

of the filing deadline. See 8 C.F.R. § 1003.23(b)(4)(iii)(A)(1); 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);

Lata v. INS, 204 F.3d 1241, 1246 (9th Cir. 2000) (requiring error and substantial

prejudice to prevail on a due process challenge).

      Because the timeliness determination is dispositive, we do not reach

Gonzalez Vasquez’s contentions regarding exceptional circumstances. See

Simeonov v. Ashcroft, 371 F.3d 532, 538 (9th Cir. 2004) (courts and agencies are

not required to reach non-dispositive issues).

      PETITION FOR REVIEW DENIED.




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