Garcia v. Holder

FILED NOT FOR PUBLICATION JUN 03 2010 MOLLY C. DWYER, CLERK UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS FOR THE NINTH CIRCUIT RESHAM SINGH; RANJIT SINGH No. 07-71652 RANA; KAMAL PREET KAUR; BALBIR KAUR, Agency Nos. A095-413-662 A095-413-663 Petitioners, A095-413-664 A095-413-665 v. ERIC H. HOLDER, Jr., Attorney General, MEMORANDUM * Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted May 25, 2010 ** Before: CANBY, THOMAS, and W. FLETCHER, Circuit Judges. Resham Singh and his family, natives and citizens of India, petition for review of the Board of Immigration Appeals’ (“BIA”) order denying their motion to reopen based on ineffective assistance of counsel. Our jurisdiction is governed * This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). by 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). We deny in part and dismiss in part the petition for review. The BIA did not abuse its discretion in denying petitioners’ motion to reopen as untimely where the motion was filed more than two years after the BIA’s September 17, 2004, order dismissing petitioners’ appeal, see 8 C.F.R. § 1003.2(c)(2), and petitioners failed to establish the late filing was due to deception, fraud or error of former counsel to warrant equitable tolling, see Iturribarria, 321 F.3d at 897. We lack jurisdiction to review the BIA’s decision not to invoke its sua sponte authority to reopen proceedings. See Ekimian v. INS, 303 F.3d 1153, 1159 (9th Cir. 2002). PETITION FOR REVIEW DENIED in part; DISMISSED in part. 2 07-71652