NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
FERNANDO CRUZ VILLEDA,

Petitioner,

v. JEFFERSON B. SESSIONS III, Attorney General, Respondent. No. 16

- 73718 Agency No. A200

- 694

- 727

MEMORANDUM *

On Petition for Review of an Order of the Board of Immigration Appeals Submitted October 22, 2018 **
Before: SILVERMAN , GRABER , and GOULD , Circuit Judges. Fernando Cruz Villeda, a native and citizen of Mexico, petitions for review of the Board of Immigration Appeals’ order dismissing his appeal from an immigration judge’s (“IJ”) decision denying his m otion to reopen or reconsider and his motion for administr ative closure

. Our jurisdiction is governed by 8 U.S.C.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36

- 3.

** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). 

# FILED

OCT 29 2018 MOLLY C. DWYER, CLER K U.S. COURT OF APPEAL S2 16

- 73718

§ 1252. W e review for abuse of discretion the denial of a motion to reopen or reconsider, and we review de novo constitutional claims and questions of law. Mohammed v. Gonzales , 400 F. 3d 785, 791

- 92 (9th Cir. 2005 ). We deny in part and dismiss in part the petition for review.
T he agency did not err, abuse its discretion, or violate due process in denying Cruz Villeda ’s motion to reopen , where the new evidence he sought t o introduce confirmed that his period of incarceration statutorily barred him from establishing the good moral character required for cancellation of removal

. See 8 U.S.C. §§ 1101(f)(7), 1229b(b)(1)(B); Ramirez

- Munoz v. Lynch , 816 F.3d 1226, 1228 (9th Cir. 2016) ( reopening requires “ pr ima facie case of eligibility ” for relief sough t) ; Gomez

-

Lopez v. Ashcroft , 393 F.3d 882, 885

- 86 (9th Cir. 2005) (incarceration in a California count y jail constituted confinement to a penal institution for purposes of 8 U.S.C. § 1101(f)(7) ); Arreguin

- Moreno v. Mukasey , 511 F.3d 1229, 1233 (9th Cir. 2008) ( counting pre - trial detention credited against the sentence imposed upon conviction ) ; Lata v. INS , 204 F.3d 1241, 12 46 (9th Cir. 2000) (requiring error to prevail on a due process claim). Cruz Villeda contends that Arreguin

- Moreno was wrongly decided, but a three

- judge panel cannot overrule circuit precedent in the absence of an intervening decision from a higher
court or e n banc decision of this court. See Avagyan v. Holder , 646 F.3d 672, 677 (9th Cir. 2011 ).3 16

- 73718

The agency did not err or violate due process in treating Cruz Villeda’s motion as a request for both reopening and reconsider ation , where t he motion included contentions that the IJ had committed errors of fact and law. See 8 U.S.C. § 1229a(c)(6)(C); Mohammed , 400 F.3d at 792. Construed as a motion to reconsider, the agency did not err, abuse its discretion , or violate due process in denying Cruz Vill eda’s motion as untimely, where he filed t he motion more than 30 days after the final order of remova l , and has not established that any statutory or regulatory exception applies

. See 8 U.S.C. § 1229a(c)(6) (B) ; 8 C.F.R. § § 1003.2 3 (b)( 1) , (b)(4) ; Lata , 204 F.3d at 1246

. The agency did not err or abuse its discretion in concluding that equitable tolling of the filing deadline was not warranted, where Cruz Villeda failed to comply with Matter of Lozada , 19 I. & N. Dec. 637 (BIA 1988), and the alleged inef fective assistance of counsel was not plain on the face of the record. See Tamang v. Holder , 598 F.3d 1083, 1090

- 91 (9th Cir. 2010). To the extent Cruz Villeda challenges the IJ’s July 18, 2014 order, we lack jurisdiction to consider those contentions beca use this petition for review is not time ly as to that order. See 8 U.S.C. § 1252(b)(1)

. Cruz Villeda establishes no error in the agency’s administrative closure determination, where it denied based on the factors applicable at the time of its decision

. See Gonzalez

- Caraveo v. Sessions , 882 F.3d 885, 89 1 (9th Cir. 2018)

.4 16

- 73718

The record does not support Cruz Villeda ’s contentions that the agency ignored evidence or arguments or that it was not neutral

. See Najmabadi v. Holder , 597 F.3d 983, 990 (9th Cir. 2010 ) ; Rivera v. Mukasey , 508 F.3d 1271, 1276 (9th Cir. 2007)

. In light of this disposition, we do not reach Cruz Villeda’s contentions regarding continuous physical presence. S ee Simeonov v. Ashcroft , 371 F.3d 532, 538 (9th Cir. 2004).
PETITION FOR REVIEW DENIED in part; DISMISSED in part
.