                                                                           FILED
                            NOT FOR PUBLICATION
                                                                           APR 15 2016
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


RAMON CARDOZA PACHECO, AKA                       No. 11-70800
Ramon Pacheco, AKA Ramon Pacheco
Cardoza, AKA Ramon Pacheco-Cardoza               Agency No. A094-811-501

              Petitioner,
                                                 MEMORANDUM*
 v.

LORETTA E. LYNCH, Attorney General,

              Respondent.



RAMON CARDOZA PACHECO, AKA                       No. 14-73280
Ramon Pacheco-Cardoza
                                                 Agency No. A094-811-501
              Petitioner,

 v.

LORETTA E. LYNCH, Attorney General,

              Respondent.


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


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
                              Submitted April 12, 2016**
                               San Francisco, California

Before: D.W. NELSON, O’SCANNLAIN, and TROTT, Circuit Judges.

          Ramon Pacheco-Cardoza (Pacheco) petitions for review of the Board of

Immigration Appeals’ (BIA) dismissal of his appeal after his request for voluntary

departure was denied. He also petitions for review of the BIA’s denial of his

motion to reopen his removal proceedings. We have jurisdiction pursuant to 8

U.S.C. § 1252, and we deny the petitions.

1.    The BIA properly found that the Immigration Judge (IJ) needed the

Department of Homeland Security’s (DHS) stipulation to grant Pacheco’s request

for voluntary departure. Pacheco requested voluntary departure during a hearing

held on March 30, 2009. The record indicates that this hearing was a merits

hearing. Because the March 30, 2009 hearing was held more than thirty days after

the last master calendar hearing, the BIA did not err in finding that the IJ needed

DHS’s stipulation to grant voluntary departure. See 8 C.F.R. §§ 1240.26(b)(1)(ii),

(b)(2).

2.        Pacheco cannot raise a successful due process challenge regarding

voluntary departure. See Tovar-Landin v. Ashcroft, 361 F.3d 1164, 1167 (9th Cir.


          **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
                                           2
2004) (“Voluntary departure is a form of discretionary relief. . . . We have held that

aliens have no fundamental right to discretionary relief from removal for purposes

of due process . . . . Because there is no constitutionally protected liberty interest in

the discretionary privilege of voluntary departure, the due process claim fails.”

(citations omitted)). Nor can the BIA declare a regulation invalid. See Espinoza-

Gutierrez v. Smith, 94 F.3d 1270, 1273 (9th Cir. 1996) (“The BIA simply has no

authority to invalidate a regulation that it is bound to follow.”). Remand to the

BIA to address Pacheco’s due process challenge regarding voluntary departure,

therefore, is unnecessary.

3.    The BIA did not err in denying Pacheco’s motion to reopen. A motion to

reopen must be filed within ninety days of a final order of removal. 8 U.S.C. §

1229a(c)(7)(C)(i). The doctrine of equitable tolling may apply “when a petitioner

is prevented from filing because of deception, fraud, or error, as long as the

petitioner acts with due diligence in discovering the deception, fraud, or error.”

Luna v. Holder, 659 F.3d 753, 759 (9th Cir. 2011) (internal quotation marks

omitted).

       As the basis for his motion to reopen, Pacheco cites the San Mateo County

Superior Court’s reduction of his felony convictions to misdemeanors. Although

Pacheco’s convictions were not reduced to misdemeanors until a few years after


                                            3
the BIA issued its order denying relief, Pacheco has not explained what happened

between December 4, 2013, when the San Mateo County Superior Court reduced

his convictions to misdemeanors, and July 15, 2014, when he filed his motion to

reopen his case. We, therefore, are unable to assess what, if any, circumstances

justified Pacheco filing the motion to reopen approximately seven months after the

reduction in convictions, and whether he exercised due diligence. See Avagyan v.

Holder, 646 F.3d 672, 679 (9th Cir. 2011) (“Our review of petitioner’s diligence

must be fact-intensive and case-specific, assessing the reasonableness of

petitioner’s actions in the context of his or her particular circumstances.”). Thus,

Pacheco has not demonstrated that equitable tolling applies. Because he also did

not give an explanation to the BIA, any error the BIA may have made in not

addressing equitable tolling was harmless. See Kazarian v. U.S. Citizenship &

Immigration Servs., 596 F.3d 1115, 1118–19 (9th Cir. 2010).1

      PETITIONS DENIED.




      1
       Pacheco also argues that he qualifies for cancellation of removal relief.
Because the BIA did not err in declining to reopen his case, we do not reach this
argument.
                                           4
