Ricardo Perez-Morales v. Eric Holder, Jr. , 554 F. App'x 653 ( 2014 )

FILED
NOT FOR PUBLICATION FEB 18 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
RICARDO PEREZ-MORALES, No. 10-71901
Petitioner, Agency No. A024-965-768
v.
MEMORANDUM*
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted February 13, 2014**
San Francisco, California
Before: KOZINSKI, Chief Judge, and O’SCANNLAIN and MURGUIA, Circuit
Judges.
Ricardo Perez-Morales appeals the BIA’s denial of his motion to reopen to
seek discretionary relief under former § 212(c) of the Immigration and Nationality
*
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).
Act. We review for abuse of discretion. Valeriano v.Gonzales, 474 F.3d 669, 672
(9th Cir. 2007).
The deadline for filing a special motion to reopen to apply for discretionary
relief under former § 212(c) was April 26, 2005. 8 C.F.R. 1003.44(h). Perez-
Morales filed his motion in November 2009. Equitable tolling of a deadline to file
a motion to reopen will apply “where, despite all due diligence, [the party invoking
equitable tolling] is unable to obtain vital information bearing on the existence of
the claim.” Socop-Gonzalez v. INS, 272 F.3d 1176, 1193 (9th Cir. 2001) (en banc)
(alteration in original) (internal quotation marks omitted). We assume arguendo
that the Immigration Judge at Perez-Morales’s 1998 final removal hearing erred by
not informing Perez-Morales of the availability of relief under former § 212(c).
Perez-Morales is presumed to have had notice of the April 26, 2005, deadline
because it was subsequently enacted by the Attorney General and published in the
Federal Register. Luna v. Holder, 659 F.3d 753, 760 (9th Cir. 2011). And even if
Perez-Morales’s ignorance of the deadline could serve as a basis for equitable
tolling, Perez-Morales has no explanation for why, if he first learned about his
potential eligibility for § 212(c) relief when his current counsel first reviewed his
file in June 2008, he waited until November 2009 to file his motion.
Additionally, a special motion to reopen to seek § 212(c) relief must
establish that the alien “[a]greed to plead guilty or nolo contendere to an offense
rendering the alien deportable or removable, pursuant to a plea agreement made
before April 1, 1997.” 8 C.F.R. § 1003.44(b)(2). Perez-Morales did not allege in
his motion to reopen that his 1994 drug possession conviction was the result of a
guilty plea pursuant to a plea agreement.
Because Perez-Morales’s motion was untimely and did not establish his
eligibility for a § 212(c) waiver, we conclude there was no abuse of discretion.
PETITION DENIED.