FILED
NOT FOR PUBLICATION JUL 21 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
RAFAEL PEREZ-AYALA, No. 09-70026
Petitioner, Agency No. A075-765-068
v.
MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted July 12, 2011 **
Before: SCHROEDER, ALARCÓN, and LEAVY, Circuit Judges.
Rafael Perez-Ayala, a native and citizen of Mexico, petitions pro se for
review of the Board of Immigration Appeals’ (“BIA”) order denying his motion to
reopen based on ineffective assistance of counsel. We have jurisdiction under
*
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).
8 U.S.C. § 1252. We review for abuse of discretion the denial of a motion to
reopen. Mohammed v. Gonzales, 400 F.3d 785, 791-92 (9th Cir. 2005). We deny
the petition for review.
The BIA did not abuse its discretion in denying Perez-Ayala’s motion to
reopen because it was filed almost five years after the BIA’s October 23, 2003,
order, see 8 C.F.R. § 1003.2(c)(2), and Perez-Ayala failed to demonstrate that he
acted with the due diligence required for equitable tolling, see Iturribarria v. INS,
321 F.3d 889, 899 (9th Cir. 2003) (equitable tolling available where “a petitioner is
prevented from filing because of deception, fraud, or error, as long as the petitioner
acts with due diligence”).
PETITION FOR REVIEW DENIED.
2 09-70026