                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 14-1312


MARVIN ANTONIO OBANDO, a/k/a Marvin Antonio Toledo,

                Petitioner,

          v.

ERIC H. HOLDER, JR., Attorney General,

                Respondent.



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


Submitted:   December 12, 2014              Decided:   December 18, 2014


Before WILKINSON, KING, and SHEDD, Circuit Judges.


Petition denied by unpublished per curiam opinion.


Timothy W. Davis, LAW OFFICE OF TIMOTHY W. DAVIS, LLC,
Baltimore, Maryland, for Petitioner. Joyce R. Branda, Acting
Assistant Attorney General, John S. Hogan, Senior Litigation
Counsel,   Roger   Thomas  Severino, Office  of   Immigration
Litigation, UNITED STATES DEPARTMENT OF JUSTICE, Washington,
D.C., for Respondent.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

            Marvin   Antonio    Obando,      a   native    and       citizen     of    El

Salvador,   petitions    for   review      of    an    order    of    the   Board      of

Immigration   Appeals    (“Board”)      dismissing        his   appeal      from      the

immigration    judge’s      (“IJ”)      order         denying        reopening        and

rescission of the in absentia order of removal.                        We deny the

petition for review.

            We review the denial of a motion to reopen for abuse

of   discretion.     8   C.F.R.   §   1003.23(b)(1)(iv)          (2014);       INS     v.

Doherty, 502 U.S. 314, 323-24 (1992); Barry v. Gonzales, 445

F.3d 741, 744 (4th Cir. 2006).             We will reverse the denial of a

motion to reopen only if the denial is “arbitrary, capricious,

or contrary to law.”      Barry, 445 F.3d at 745 (internal quotation

marks omitted).      Because Obando waited twelve years to file his

motion to reopen and rescind, he must show that he is eligible

for equitable tolling.         See Kuusk v. Holder, 732 F.3d 302, 305

(4th Cir. 2013) (the principles of equitable tolling apply to

the time limits for motions to reopen).                   We conclude that the

record does not support the finding that it was “impossible” for

Obando to have acted earlier.              Id.        We further conclude that

substantial evidence supports the finding that Obando was not

diligent in seeking relief from the removal order.                     See Neves v.

Holder, 613 F.3d 30, 33 (1st Cir. 2010) (whether Petitioner was



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diligent     in     seeking         relief         is    reviewed       for     substantial

evidence).

            Obando also claims he was denied due process because

the Board did not consider his claim that the IJ erred denying

sua sponte reopening.               We find this claim to be without merit

because the Board clearly considered the IJ’s decision, albeit

in a footnote and without the analysis Obando was hoping for.

Also, Obando’s contention that the IJ’s denial of sua sponte

reopening    was     an     error    as    a   matter       of    law    is    clearly       not

supported    by     the    record.         Because        the    decision      to    deny     sua

sponte   reopening        was   a    matter        of    discretion,     we    are        without

jurisdiction to review it.                See Mosere v. Mukasey, 552 F.3d 397,

400-01 (4th Cir. 2009).

            Accordingly,        we     deny        the    petition      for    review.         We

dispense     with       oral    argument       because          the    facts        and    legal

contentions       are     adequately      presented        in    the    materials          before

this court and argument would not aid the decisional process.



                                                                          PETITION DENIED




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