                                                                            FILED
                             NOT FOR PUBLICATION                             OCT 15 2012

                                                                        MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                             FOR THE NINTH CIRCUIT



EDGAR RENE MAGANA-GARCIA,                        No. 11-70380

               Petitioner,                       Agency No. A029-171-248

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

               Respondent.



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

                             Submitted October 9, 2012 **

Before:        RAWLINSON, MURGUIA, and WATFORD, Circuit Judges.

       Edgar Rene Magana-Garcia, a native and citizen of El Salvador, petitions for

review of the Board of Immigration Appeals’ (“BIA”) order denying his motion to

reopen proceedings. Our jurisdiction is governed by 8 U.S.C. § 1252. We review

de novo claims of constitutional violations in immigration proceedings.


          *
             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).
Iturribarria v. INS, 321 F.3d 889, 894 (9th Cir. 2003). We dismiss in part and

deny in part the petition for review.

         The BIA denied Magana-Garcia’s motion as untimely, and declined to

exercise its sua sponte authority to reopen removal proceedings under 8 C.F.R.

§ 1003.2(a). We lack jurisdiction to review the BIA’s discretionary decision

whether to exercise its sua sponte authority. See Mejia-Hernandez v. Holder, 633

F.3d 818, 823-824 (9th Cir. 2011).

         Magana-Garcia’s equal protection challenge to the BIA’s refusal to grant

reopening is unavailing. See Dillingham v. INS, 267 F.3d 996, 1007 (9th Cir.

2001) (“In order to succeed on his [equal protection] challenge, the petitioner must

establish that his treatment differed from that of similarly situated persons.”),

overruled on other grounds by Nunez-Reyes v. Holder, 646 F.3d 684 (9th Cir.

2011).

         Magana-Garcia has waived any challenge to the BIA’s determination that he

is not entitled to equitable tolling for alleged ineffective assistance of counsel. See

Martinez-Serrano v. INS, 94 F.3d 1256, 1259-60 (9th Cir. 1996) (issues not raised

in the opening brief are waived).

         PETITION FOR REVIEW DISMISSED in part; DENIED in part.




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