Rafael Garcia-Gutierrez v. Loretta E. Lynch

FILED
NOT FOR PUBLICATION APR 01 2016

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

FOR THE NINTH CIRCUIT

RAFAEL GARCIA-GUTIERREZ, No. 13-72820

Petitioner, Agency No. A077-335-780

v.
MEMORANDUM*
LORETTA E. LYNCH, Attorney General,

Respondent.

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

Submitted March 15, 2016**

Before: GOODWIN, LEAVY, and CHRISTEN, Circuit Judges.

Rafael Garcia-Gutierrez, a native and citizen of Mexico, petitions for review

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

and dismissing his appeal from an immigration judge’s (“IJ”) decision denying his

motion to reopen. We have jurisdiction under 8 U.S.C. § 1252. We review for

*
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).
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 Garcia-Gutierrez’ motion to

reopen based on ineffective assistance of counsel, where Garcia-Gutierrez filed the

motion more than eight years after his final order of removal, see 8 C.F.R.

§ 1003.2(c)(2), and did not establish the due diligence required for equitable tolling

of the filing deadline, see Iturribarria v. INS, 321 F.3d 889, 897 (9th Cir. 2003)

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

motion to reopen due to deception, fraud or error, as long as petitioner exercises

due diligence in discovering such circumstances); Avagyan v. Holder, 646 F.3d

672, 679 (9th Cir. 2011) (due diligence requires petitioner to take reasonable steps

to investigate any suspected fraud or error, or if he is ignorant of such

circumstances, make reasonable efforts to pursue relief).

The record does not support Garcia-Gutierrez’ contention that the BIA failed

to accept as true the facts stated in his declaration in support of his motion to

reopen. See Avagyan, 646 F.3d at 678-79.

In light of this disposition, we do not reach Garcia-Gutierrez’ remaining

contentions.

PETITION FOR REVIEW DENIED.

2 13-72820