                                                                           FILED
                             NOT FOR PUBLICATION                            JAN 29 2015

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



                             FOR THE NINTH CIRCUIT


JUAN ANTONIO SARMIENTO,                          No. 09-73426

               Petitioner,                       Agency No. A094-167-151

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

               Respondent.


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

                                 January 21, 2015**

Before:        CANBY, GOULD, and N.R. SMITH, Circuit Judges.

       Juan Antonio Sarmiento, 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 (“IJ”) decision denying his motion to reopen removal

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

de novo questions of law. Singh v. Ashcroft, 367 F.3d 1182, 1185 (9th Cir. 2004).

We deny the petition for review.

      The agency did not abuse its discretion by denying as untimely Sarmiento’s

motion to reopen where he filed his motion nearly eight years after his in absentia

order of removal became administratively final, see 8 U.S.C. § 1229a(c)(7)(C)(i);

8 C.F.R. § 1003.23(b)(1), (4), and he failed to demonstrate inadequate notice such

as would warrant an exception to the filing deadline where he personally received

and signed the notice to appear informing him of the time, date, and place of his

removal hearing, see Khan v. Ashcroft, 374 F.3d 825, 828-29 (9th Cir. 2004). It

follows that Sarmiento’s due process claim fails. See Lata v. INS, 204 F.3d 1241,

1246 (9th Cir. 2000) (requiring error and prejudice to prevail on due process

claim).

      Sarmiento also failed to demonstrate that his motion warranted equitable

tolling of the filing deadline based on ineffective assistance where he knowingly

relied on the assistance of non-attorneys for nearly eight years. See Singh-Bhathal

v. INS, 170 F.3d 943, 946-47 (9th Cir. 1999) (reliance on advice of non-attorney

immigration consultant insufficient to demonstrate “exceptional circumstances”

necessary to reopen in absentia proceedings).


                                          2                                     09-73426
      Sarmiento’s purported eligibility for other forms of relief did not require the

IJ to reopen his removal proceedings in the absence of a timely motion to reopen.

See Ekimian v. INS, 303 F.3d 1153, 1156 (9th Cir. 2002) ( “[A] motion to reopen

to consider an application for an adjustment of status must be presented to the

[agency] no later than ninety days after the issuance of a final decision by the

[agency].”).

      Lastly, Sarmiento’s contention that the BIA failed to provide a reasoned

explanation for its decision is not supported by the record.

      This dismissal is without prejudice to petitioner’s seeking prosecutorial

discretion or deferred action from the Department of Homeland Security. See

Reno v. American-Arab Anti-Discrimination Committee (AADC), 525 U.S. 471,

483-85 (1999) (stating that prosecutorial discretion by the agency can be granted at

any stage, including after the conclusion of judicial review).

                    PETITION FOR REVIEW DENIED.




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