FILED
NOT FOR PUBLICATION
NOV 02 2016
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
NORBERTO COLON-LORENZO, Nos. 13-71513
13-72035
Petitioner,
Agency No. A070-155-078
v.
LORETTA E. LYNCH, Attorney General, MEMORANDUM*
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted August 30, 2016
Pasadena, California
Before: KOZINSKI and BYBEE, Circuit Judges, and WALTER, Senior District
Judge.**
1. Colon-Lorenzo contends that the BIA erred in denying as untimely his
motion to reconsider its 1993 dismissal and to reopen proceedings. But the BIA did
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Donald E. Walter, Senior United States District Judge
for the Western District of Louisiana, sitting by designation.
not err. Citing Avagyan v. Holder, 646 F.3d 672, 679 (9th Cir. 2011), the BIA
correctly found that Colon-Lorenzo’s assertions were insufficient to establish due
diligence.
Colon-Lorenzo was ordered deported on February 18, 1993. After his
attorney failed to timely appeal, Colon-Lorenzo filed an untimely pro se notice of
appeal, which was dismissed on November 18, 1993. The BIA’s dismissal was sent
directly to Colon-Lorenzo. From then until 2013, despite having all pertinent
information at his disposal, he made no reasonable efforts to pursue relief. See
Avagyan, 646 F.3d at 680 (stating that petitioner first had reason to suspect
counsels’ deficient performance when the BIA denied her appeal). Nearly two
decades later, on February 8, 2013, Colon-Lorenzo requested that the BIA
reconsider its dismissal and reopen the proceedings.
The motion was clearly untimely, unless subject to equitable tolling. “[A]
petitioner is entitled to equitable tolling of the deadline ‘during periods when a
petitioner is prevented from filing because of a deception, fraud, or error, as long
as petitioner acts with due diligence in discovering the deception, fraud or error.’”
Avagyan, 646 F.3d at 679 (quoting Iturribarria v. INS, 321 F.3d 889, 897 (9th Cir.
2003)). This court has found that a lack of due diligence foreclosed a petitioner’s
entitlement to equitable tolling where the petitioner became suspicious of fraud a
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“few weeks” after entry of a removal order and yet failed to take any action for six
months. Singh v. Gonzales, 491 F.3d 1090, 1096 (9th Cir. 2007). We explained
that said “inaction contrast[ed] sharply with cases in which we have concluded that
the petitioner acted with due diligence.” Id. (collecting cases). Colon-Lorenzo’s
inaction, for nearly twenty years, during which time he also chose to illegally re-
enter the United States, likewise forecloses the application of equitable tolling. The
BIA’s decision was therefore not “arbitrary, irrational, or contrary to law.”
Ontiveros–Lopez v. INS, 213 F.3d 1121, 1124 (9th Cir. 2000) (citation omitted).
2. Regardless of our decision above, Colon-Lorenzo is also subject to the
DHS’s proper reinstatement of his February 18, 1993 deportation order. Pursuant
to 8 U.S.C. § 1231(a)(5), “the prior order of removal is reinstated . . . and is not
subject to being reopened or reviewed, the alien is not eligible . . . for any relief
under this chapter, and the alien shall be removed . . . at any time after the reentry.”
The record supports the DHS’s findings that Colon-Lorenzo (1) is an alien, subject
to a previous order of deportation entered on February 18, 1993; (2) was removed,
pursuant thereto, on January 31, 1998; and (3) illegally reentered the United States
on or about February 1, 1998. See Garcia de Rincon v. Dep’t of Homeland Sec.,
539 F.3d 1133, 1137 (9th Cir. 2008) (citing Morales–Izquierdo v. Gonzales, 486
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F.3d 484, 495 (9th Cir. 2007) (en banc)). These findings are conclusive. 8 U.S.C. §
1252(b)(4)(B).
DENIED.
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