Marvin Antonio Obando v. Eric Holder, Jr.

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: A042-480-275 Copies to all parties and the district court/agency. [999495906].. [14-1312]

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UNPUBLISHED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Petition denied by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Marvin
Salvador,

Antonio

petitions

Immigration
immigration

for

Appeals

Obando,
review

(“Board”)

judge’s

(“IJ”)

a
of

native
an

order

dismissing
order

and

citizen

of

his

denying

the

appeal

of

El

Board

of

from

reopening

rescission of the in absentia order of removal.

the
and

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.”
marks omitted).

Barry, 445 F.3d at 745 (internal quotation

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

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seeking

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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

supported

by

sponte

an
the

reopening

error

as

record.
was

a

a

matter

Because

matter

jurisdiction to review it.

of

of

the

law

is

decision

discretion,

we

clearly
to

deny

are

not
sua

without

See Mosere v. Mukasey, 552 F.3d 397,

400-01 (4th Cir. 2009).
Accordingly,
dispense

with

contentions

are

oral

we

deny

argument

adequately

the

petition

because

presented

in

the
the

for
facts

review.

We

and

legal

materials

before

this court and argument would not aid the decisional process.

PETITION DENIED

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