Victor Huante Magana v. Eric Holder, Jr.

FILED
NOT FOR PUBLICATION DEC 11 2013

MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

VICTOR MANUEL HUANTE No. 12-70416
MAGANA,
Agency No. A096-351-510
Petitioners,

v. MEMORANDUM*

ERIC H. HOLDER, Jr., Attorney General,

Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals

Submitted November 19, 2013**

Before: CANBY, TROTT, and THOMAS, Circuit Judges.

Victor Manuel Huante Magana, a native and citizen of Mexico, petitions for

review of the Board of Immigration Appeals’ (“BIA”) order denying his motion to

reopen removal proceedings based on ineffective assistance of counsel. We have

*
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).
jurisdiction under 8 U.S.C. § 1252. We review for abuse of discretion the denial of

motions to reopen, and review de novo questions of law. 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 Huante Magana’s motion to

reopen as untimely and number-barred where the successive motion was filed more

than five years after his removal order became final, see 8 C.F.R. § 1003.2(c)(2),

and he failed to demonstrate the due diligence required for equitable tolling of the

filing deadline, see Avagyan v. Holder, 646 F.3d 672, 679 (9th Cir. 2011)

(equitable tolling is available to a petitioner who is prevented from filing because

of deception, fraud or error, and exercised due diligence in discovering such

circumstances). Contrary to Huante Magana’s contention, the BIA did not employ

an incorrect standard of review. See id. at 679 (explaining that “if petitioner is

ignorant of counsel’s shortcomings, whether petitioner made reasonable efforts to

pursue relief” is a consideration when assessing diligence).

PETITION FOR REVIEW DENIED.

2 12-70416