Jose Carrillo-Rivera v. Eric Holder, Jr. , 508 F. App'x 656 ( 2013 )

FILED
NOT FOR PUBLICATION FEB 14 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
JOSE DANIEL CARRILLO-RIVERA, No. 12-70339
Petitioner, Agency No. A070-171-349
v.
MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted February 11, 2013 **
Before: FERNANDEZ, TASHIMA, and WARDLAW, Circuit Judges.
Jose Daniel Carrillo-Rivera, a native and citizen of Mexico, petitions for
review of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal
from an immigration judge’s decision denying his motion to reopen based on
ineffective assistance of counsel. We have jurisdiction under 8 U.S.C. § 1252. We
*
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).
review for abuse of discretion the denial of a motion to reopen, Avagyan v. Holder,
646 F.3d 672, 674 (9th Cir. 2011), and we deny the petition for review.
The BIA did not abuse its discretion in denying Carrillo-Rivera’s motion to
reopen as untimely where the motion was filed more than five years after his
removal order became final, see 8 C.F.R. § 1003.2(c)(2), and Carrillo-Rivera failed
to establish grounds for equitable tolling of the filing deadline, see Avagyan, 646
F.3d at 678-80 (equitable tolling is available to a petitioner who establishes he was
prevented from filing because of deception, fraud or error, and exercised due
diligence in discovering such circumstances).
Contrary to Carrillo-Rivera’s contention, the BIA did not engage in
impermissible fact-finding where it applied the law to undisputed facts. See 8
C.F.R. § 1003.1(d)(3)(ii).
In light of our disposition, we need not reach Carillo-Rivera’s remaining
contentions.
PETITION FOR REVIEW DENIED.
2 12-70339