                                                                            FILED
                              NOT FOR PUBLICATION                           MAY 02 2016

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



                              FOR THE NINTH CIRCUIT


ALBERTO DE JESUS-FERNANDEZ                       No. 14-73130
GUERRA, AKA Alberto De Jesus Guerra-
Hernandez and ELSA AVILA DE                      Agency Nos.         A026-786-209
GUERRA,                                                              A026-786-208

               Petitioners,
                                                 MEMORANDUM*
 v.

LORETTA E. LYNCH, Attorney General,

               Respondent.


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

                              Submitted April 26, 2016**

Before:        McKEOWN, WARDLAW, and PAEZ, Circuit Judges.

      Alberto De Jesus-Fernandez Guerra and Elsa Avila De Guerra, both natives

and citizens of El Salvador, petition for review of the Board of Immigration

Appeals’ (“BIA”) order denying their motion to reopen. Our jurisdiction is

          *
             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).
governed by 8 U.S.C. § 1252. We review for abuse of discretion the denial of a

motion to reopen. Mohammed v. Gonzales, 400 F.3d 785, 791 (9th Cir. 2005). We

deny in part and dismiss in part the petition for review.

      The BIA did not abuse its discretion by denying petitioners’ motion to

reopen as untimely, where the motion was filed more than 25 years after their final

order of removal, see 8 C.F.R. § 1003.23(b)(1), and petitioners failed to establish

the due diligence required for equitable tolling of the filing deadline, see 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 petitioner exercises due diligence in discovering such

circumstances); see also Albillo-De Leon v. Gonzales, 410 F.3d 1090, 1099-1100

(9th Cir. 2005) (due diligence showing required for a claim under the Nicaraguan

Adjustment and Central American Relief Act (“NACARA”) to be equitably tolled).

      Because the timeliness determination is dispositive, the BIA was not

required to address, and we do not reach here, petitioners’ contentions regarding

prior counsel’s alleged ineffective assistance or eligibility for NACARA. See

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




                                           2                                   14-73130
      Contrary to petitioners’ contentions, the BIA sufficiently considered their

arguments and articulated its reasons for denying the motion. See Najmabadi v.

Holder, 597 F.3d 983, 990 (9th Cir. 2010).

      To the extent petitioners challenge the BIA’s decision not to invoke its sua

sponte authority to reopen, we lack jurisdiction over that contention. See Mejia-

Hernandez v. Holder, 633 F.3d 818, 823-24 (9th Cir. 2011). In addition,

petitioners’ contention that the BIA stated it lacked the power to reopen sua sponte

is not supported by the record.

      PETITION FOR REVIEW DENIED in part and DISMISSED in part.




                                          3                                   14-73130
