Rodrigo Diaz v. Eric Holder, Jr. , 440 F. App'x 570 ( 2011 )

FILED
NOT FOR PUBLICATION JUN 28 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
RODRIGO DIAZ and CATALINA DIAZ No. 10-70641
MENDEZ,
Agency Nos. A070-915-784
Petitioners, A070-915-785
v.
MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted June 15, 2011 **
Before: CANBY, O’SCANNLAIN, and FISHER, Circuit Judges.
Rodrigo Diaz and Catalina Diaz Mendez, natives and citizens of Mexico,
petition pro se for review of the Board of Immigration Appeals’ order dismissing
their appeal from an immigration judge’s (“IJ”) order denying their motion to
reopen. We have jurisdiction under 8 U.S.C. § 1252. We review for abuse of
*
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).
discretion the denial of a motion to reopen, Iturribarria v. INS, 321 F.3d 889, 894
(9th Cir. 2003), and we deny the petition for review.
The agency did not abuse its discretion in denying petitioners’ motion to
reopen because the motion was filed more than thirteen years after the IJ’s June 13,
1995, deportation order, see 8 C.F.R. § 1003.23(b)(4)(iii), and petitioners failed to
establish that they acted with the due diligence required for equitable tolling, see
Iturribarria, 321 F.3d at 897 (deadline can be equitably tolled “when a petitioner is
prevented from filing because of deception, fraud, or error, as long as the petitioner
acts with due diligence”). Petitioners’ due process claim therefore fails. See Lata
v. INS, 204 F.3d 1241, 1246 (9th Cir. 2000) (requiring error for a due process
violation).
PETITION FOR REVIEW DENIED.
2 10-70641