Cruz v. Holder

FILED NOT FOR PUBLICATION JAN 21 2010 MOLLY C. DWYER, CLERK UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS FOR THE NINTH CIRCUIT REYNALDO DELA CRUZ CRUZ; No. 07-72161 ERLINDA SAGUIGUIT CRUZ, Agency Nos. A072-512-224 Petitioners, A072-514-749 v. MEMORANDUM * ERIC H. HOLDER Jr., Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted January 11, 2010 ** Before: BEEZER, TROTT, and BYBEE, Circuit Judges. Reynaldo Dela Cruz Cruz and Erlinda Saguiguit Cruz, natives and citizens of the Philippines, petition for review of the Board of Immigration Appeals’ (“BIA”) order denying their motion to reopen based on ineffective assistance of * 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). KS/Research counsel. We 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), and we deny the petition for review. The BIA did not abuse its discretion in denying petitioners’ motion to reopen as untimely because the motion was filed more than two years after the BIA’s June 23, 2004, order dismissing their appeal, see 8 C.F.R. § 1003.2(c)(2), and petitioners failed to establish that they acted with the due diligence required for equitable tolling, 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). The BIA’s failure to address petitioners’ request for an additional period of voluntary departure was harmless error. See 8 U.S.C. § 1229c(b)(1) (Attorney General may permit voluntary departure if immigration judge enters order granting that relief at the conclusion of removal proceedings). In light of our disposition, we do not reach petitioners’ remaining contentions. PETITION FOR REVIEW DENIED. KS/Research 2 07-72161