Perdomo v. Ashcroft

Edwin Perdomo, a native and citizen of El Salvador, petitions for review of an order of the Board of Immigration Appeals (Board) sustaining an appeal by the Department of Homeland Security and vacating a decision of the immigration judge that granted a motion to reopen a final order of deportation in absentia and granted Perdomo’s request for adjustment of status. The Board reinstated the 1996 in absentia order of deportation. We have jurisdiction under 8 U.S.C. § 1105a(a) (1994), * and we deny the petition for review.

We conclude that the Board did not abuse its discretion in denying the untimely motion to reopen for rescission of the in absentia order of deportation. The record reveals that Perdomo received actual notice of the hearing and did not timely move to reopen in accordance with 8 U.S.C. § 1252b(c)(3)(A) (1994). The Board did not abuse its discretion in holding that, without deciding whether the time limit set forth in § 1252(c)(3)(A) is subject to equitable tolling, Perdomo did not establish the due diligence necessary to invoke such an exception. See Scorteanu v. INS, 339 F.3d 407, 413-14 (6th Cir. 2003); Jobe v. INS, 238 F.3d 96, 100, 101 (1st Cir. 2001) (en banc).

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 the court and argument would not aid the decisional process.

PETITION DENIED