U.S. Court of Appeals for the Ninth Circuit, 2011

Rafael Perez-Ayala v. Eric H. Holder Jr.

U.S. Court of Appeals for the Ninth Circuit · Decided July 21, 2011 · Schroeder, Alarcón, Leavy

444 F. App'x 202

Counsel

Raul Ernesto Godinez, Esquire, Law Office of Raul E. Godinez, Los Angeles, CA, for Petitioner., Steven Frank Day, Esquire, OIL, U.S. Department of Justice, Civil Division/Office of Immigration Litigation, Washington, DC, Chief Counsel Ice, Office of the Chief Counsel Department of Homeland Security, San Francisco, CA, for Respondent.

Opinion

MEMORANDUM **

Victor Briseno-Hernandez, a native and citizen of Mexico, petitions for review of the Board of Immigration Appeals’ (“BIA”) order denying his motion to reopen removal proceedings. We have jurisdiction under 8 U.S.C. § 1252. We review for abuse of discretion the denial of a motion to reopen, Iturribarria v. INS, 321 F.3d 889, 894 (9th Cir. 2003), and we deny the petition for review.

The BIA acted within its discretion in denying as untimely Briseno-Hernandez’s motion to reopen because it was filed more than 90 days after the BIA’s final removal order, see 8 C.F.R. § 1003.2(c)(2), and he failed to establish that he was entitled to equitable tolling of the filing deadline, see Iturribarria, 321 F.3d at 897 (deadline for filing a motion to reopen can be equitably tolled where a petitioner acts with due diligence).

In light of this disposition, we need not reach Briseno-Hernandez’s remaining contentions.

PETITION FOR REVIEW DENIED.

This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.

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