Full Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS OCT 27 2026 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT ALEXANDER PINEDA LOPEZ; No. 24-1396 BLANCA FLORES DE PINEDA; FREDY Agency Nos. PINEDA FLORES; VALERIA PINEDA A220-309-838 FLORES, A220-309-839 A220-309-840 Petitioners, A220-309-841 v. MEMORANDUM* TODD BLANCHE, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted October 20, 2026** San Francisco, California Before: CALLAHAN and LEE, Circuit Judges, and EZRA, District Judge.*** * 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). *** The Honorable David A. Ezra, United States District Judge for the District of Hawaii, sitting by designation. Alexander Pineda-Lopez and his family (collectively, “Petitioners”) seek review of the denial of their motion to reopen by the Board of Immigration Appeals (“BIA”). They contend that because notice of the briefing schedule went to counsel’s spam email folder, there was an extraordinary circumstance that warranted equitable tolling of the briefing deadline. The BIA found that Pineda- Lopez had not shown an exceptional circumstance. We deny Petitioners’ timely filed petition for review. We review the BIA’s denial of a motion to reopen for abuse of discretion and “uphold the agency’s decision unless it is ‘arbitrary, irrational, or contrary to law.’” Hernandez-Ortiz v. Garland, 32 F.4th 794, 800 (9th Cir. 2022). The BIA’s sua sponte authority is generally not subject to review. Lona v. Barr, 958 F.3d 1225, 1227 (9th Cir. 2020 (citing Menendez-Gonzalez v. Barr, 929 F.3d 1113, 1116 (9th Cir. 2019)). There is a “narrow exception” when the BIA denies sua sponte relief based on a legal or constitutional error. Id. (citing Bonilla v. Lynch, 840 F.3d 575 (9th Cir. 2016)). First, Petitioners have not shown that the BIA abused its discretion in denying petitioners’ motion to reopen. The BIA can summarily dismiss an appeal when a party indicates they will file a brief and then fails to do so or otherwise fails to specify their basis for appeal. 8 C.F.R. § 1003.1(d)(2)(i)(A), (E). When a party files a Notice of Appeal to the BIA and indicates an intention to file a brief, as 2 24-1396 Petitioners did here, the BIA sends a briefing schedule with the deadline for filing that brief. 8 C.F.R. § 1003.3(c)(1). The BIA dismissed Petitioners’ appeal because they failed to file their brief by the deadline. The BIA may reopen or reconsider its decisions sua sponte or at the request of either party but has the discretion to deny a motion to reopen even when a prima facie case for relief has been made. 8 C.F.R. § 1003.2(a). In their motion to reopen, Petitioners contended that the BIA should have granted an exception to the briefing deadline for exceptional circumstances. But, Petitioners have not shown that they qualify for equitable tolling. Equitable tolling applies when an “extraordinary circumstance” prevents timely filing, and the petitioner acts diligently to pursue their rights. Hernandez-Ortiz, 32 F.4th at 801. Inadvertent acts within the control of the party, or their representative, are not extraordinary circumstances. 8 C.F.R. § 1003.3(c)(1); see also Matter of Morales- Morales, et al., 28 I & N. Dec. 714, 716-17 (BIA 2023). Moreover, the failure to see the briefing schedule because it went into counsel’s spam folder does not excuse a failure to meet briefing deadlines. See Matter of Arciniegas-Patino, et al., 28 I. & N. Dec. 883, 886 (BIA 2025). Petitioners’ counsel provided his email address but failed to properly set up his email inbox to designate the Executive Office of Immigration Review (“EOIR”) as an approved sender and then failed check the spam folder as 3 24-1396 instructed. See Executive Office for Immigration Review Electronic Case Access and Filing, 86 Fed. Reg. 70707, 70710 (Dec. 13, 2021) (effective Feb. 11, 2022) (“Representatives should vigilantly monitor their email inboxes, including any spam folders, for service notifications from EOIR, just as a person would for any important email communications”); see also ECAS User Manual (Sept. 25, 2022) (available at https://www.justic.gov/eoir/ecas-attorneys-and-accredited- representatives#resources) (“[Y]ou may need to check your spam folder and designate that domain as an approved sender.”). Accordingly, Petitioners have not shown that the BIA acted arbitrarily, irrationally, or contrary to law in denying their motion to reopen. Second, Petitioners have not shown that the BIA abused its discretion in declining petitioners’ motion to reopen as a motion to reconsider. Motions to reconsider are “separate and distinct” from motions to reopen. Chudshevid v. INS, 641 F.2d 780, 783-84 (9th Cir. 1981). A motion to reconsider asks the BIA to reconsider the case based on a prior error of fact or law, while a motion to reopen is based on new evidence that was unavailable at the prior hearing. See 8 C.F.R. §§ 1003.2(b), (c). Before the BIA, Petitioners did not request reconsideration or style their motion as a motion to reconsider. Petitioners also failed to allege an error of fact or law in the BIA’s initial dismissal. See Nolasco-Amaya v. Garland, 14 F.4th 1007, 1012 (9th Cir. 2021) (a party must “‘provide meaningful guidance to the 4 24-1396 BIA’ by informing it of the issues contested on appeal; a ‘generalized and conclusory statement about the proceedings before the IJ’ does not suffice.” (quoting Toquero v. INS, 956 F.2d 193, 195 (9th Cir. 1992))). Thus, the BIA did not abuse its discretion in declining to reconsider Petitioners’ appeal from the Immigration Judge’s decision. Finally, Petitioners contend that the BIA abused its discretion because due process requires fundamentally fair procedures. They argue that the BIA should have accepted the late filing because it was not their fault. Due process requires notice that is “reasonably calculated” to reach the petitioner. Matter of F-B-G-M-, 29 I. & N. Dec. 52, 55 (BIA 2025) (citing Mullane v. Cent. Hanover Bank & Tr. Co., 339 U.S. 306, 314 (1950)). The Ninth Circuit has found violations of due process where the notice provided was not calculated to reach the recipient. See Singh v. Ashcroft, 362 F.3d 1164, 66-67 (9th Cir. 2004) (sending the briefing schedule to the wrong address); see also Irigoyen-Briones v. Holder, 644 F.3d 943, 949 (9th Cir. 2011) (risks that the mail carrier or receiving office would delay the filing, both of which were beyond the alien’s control). But, there is a presumption of delivery when notice is sent through EOIR’s electronic service system because the notification “is reasonably calculated to apprise them that the briefing schedule has been added.” Matter of F-B-G-M-, 29 I. & N. Dec. 52 at 56-57. 5 24-1396 Here, Petitioners’ failure to file their brief on time was not the fault of the BIA or a third-party. The briefing schedule was properly sent and delivered to the email address provided by Petitioners’ counsel. Therefore, Petitioners’ received sufficient notice and counsel’s firm’s failure to properly set up its email account and to check its spam folder does not warrant a finding of a denial of due process. The petition for review is DENIED. 6 24-1396