Pineda-Oreana v. Holder

FILED
NOT FOR PUBLICATION NOV 30 2009

MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T O F AP PE ALS

FOR THE NINTH CIRCUIT

MARCOS PINEDA-OREANA, No. 07-73334

Petitioner, Agency No. A028-572-929

v.
MEMORANDUM *
ERIC H. HOLDER Jr., Attorney General,

Respondent.

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

Submitted November 17, 2009 **

Before: ALARCÓN, TROTT, and TASHIMA, Circuit Judges.

Marcos Pineda-Oreana, a native and citizen of El Salvador, petitions for

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

reopen deportation proceedings based on ineffective assistance of counsel. We

*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).

RB/Research
have jurisdiction pursuant to 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 (9th

Cir. 2005). We deny the petition for review.

The BIA did not abuse its discretion in denying Pineda-Oreana’s motion to

reopen as untimely because it was filed more than 16 years after the BIA’s April

23, 1990, order dismissing his appeal, and more than ten years after the September

30, 1996, statutory motions deadline. See 8 C.F.R. § 1003.2(c)(2) (motion to

reopen deportation proceedings must be filed within 90 days of the final

administrative order, or September 30, 1996, whichever is later). The BIA acted

within its discretion in concluding that the evidence submitted with the motion to

reopen failed to establish the due diligence required to warrant tolling of the

motions deadline. See Iturribarria v. INS, 321 F.3d 889, 897 (9th Cir. 2003)

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

deception, fraud or error, and exercises due diligence in discovering such

circumstances).

PETITION FOR REVIEW DENIED.

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