FILED
NOT FOR PUBLICATION JUL 06 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
GABRIELA OLVERA, No. 08-74297
Petitioner, Agency No. A095-301-373
v.
MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
JOSE MARIANO OLVERA- No. 08-74298
SEGOVIANO,
Agency No. A095-301-372
Petitioner,
v.
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of Orders of the
Board of Immigration Appeals
Submitted March 22, 2011 **
*
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).
Before: SKOPIL, FARRIS, and LEAVY, Circuit Judges.
Jose Olvera-Segoviano and his former wife, Gabriela Olvera, natives and
citizens of Mexico, petition for review of final decisions issued by the Board of
Immigration Appeals (BIA) denying their motions to reopen removal proceedings.
The BIA determined the motions were not timely filed, the Olveras were not
entitled to equitable tolling, and their circumstances did not warrant sua sponte
reopening. We agree the motions were neither timely filed nor subject to equitable
tolling. We lack jurisdiction to review the BIA’s decision not to invoke its sua
sponte authority to reopen. Accordingly, we deny the petitions in part and dismiss
in part.
A motion to reopen must generally be filed within 90 days of the final
administrative order of removal. Ghahremani v. Gonzales, 498 F.3d 993, 999 (9th
Cir. 2007) (citing 8 U.S.C. § 1229a(c)(7)(C)(I)). The motions here were not timely
because they were filed nearly four years after the BIA’s initial decision. Although
a showing of ineffective assistance of counsel may permit late filing, see Singh v.
Gonzales, 491 F.3d 1090, 1096 (9th Cir. 2007), the Olveras’ claims of ineffective
representation had already been rejected by the BIA on direct appeal and again on
denial of reconsideration. We also rejected their ineffective assistance of counsel
claims and concluded the Olveras “failed to identify any error of fact or law in the
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BIA’s prior decision.” Olvera-Segoviano v. Keisler, 248 Fed.Appx 844 (2007 WL
2818457) (9th Cir. 2007).
To the extent the Olveras now assert that a non-attorney who assisted them
initially and the attorney who aided them in filing their pro se appeal and motion for
reconsideration were also ineffective, we agree with the BIA that the Olveras were
not diligent in raising those claims. See Singh, 491 F.3d at 1096 (noting equitable
tolling requires the petitioner act with “due diligence”); see also Hernandez v.
Mukasey, 524 F.3d 1014, 1015-16 (9th Cir. 2008) (holding that “knowing reliance
upon the advice of a non-attorney cannot support a claim for ineffective assistance
of counsel in a removal proceeding”).
The Olveras also contend they are entitled to reopening based on their newly
acquired eligibility for relief. But, as the BIA noted, such new circumstances do not
provide a basis for equitable tolling of the time period for filing a motion to reopen.
The BIA does have the authority in such instances, however, to grant reopening sua
sponte. See Sharma v. Holder, 633 F.3d 865, 874 (9th Cir. 2011) (citing 8 C.F.R. §
1003.2(a)). Nonetheless, we lack “jurisdiction to review the Board’s decision not to
invoke its sua sponte authority to reopen” a removal proceeding. Id.
PETITIONS FOR REVIEW DENIED in part; DISMISSED in part.
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