Vardan Petrosyan v. Eric H. Holder Jr. , 408 F. App'x 35 ( 2011 )

FILED
NOT FOR PUBLICATION JAN 06 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
VARDAN PETROSYAN; et al., No. 08-74335
Petitioners, Agency Nos. A076-357-482
A076-357-483
v. A076-357-484
ERIC H. HOLDER, Jr., Attorney General,
MEMORANDUM *
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted December 14, 2010 **
Before: GOODWIN, WALLACE, and THOMAS, Circuit Judges.
Vardan Petrosyan and family, natives and citizens of Armenia, petition for
review of the Board of Immigration Appeals’ (“BIA”) order denying their motion
to reopen based on ineffective assistance of counsel. We have jurisdiction
*
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).
pursuant to 8 U.S.C. § 1252. Reviewing for abuse of discretion, Singh v. Gonzales,
491 F.3d 1090, 1095 (9th Cir. 2007), we deny in part and grant in part the petition
for review.
The BIA did not abuse its discretion in denying petitioners’ motion to
reopen as untimely because the motion was filed more than six years after the
BIA’s June 11, 2002, order dismissing the underlying appeal, see 8 C.F.R.
§ 1003.2(c)(2) (motion to reopen must generally be filed within 90 days of the final
administrative order), and petitioners failed to establish grounds for equitable
tolling, see Singh, 491 F.3d at 1096-97.
Because the BIA failed to address petitioners’ request that the BIA exercise
its sua sponte authority to reopen proceedings, we remand for the BIA to consider
petitioners’ request in the first instance. See Montes-Lopez v. Gonzales, 486 F.3d
1163, 1165 (9th Cir. 2007).
Each party shall bear its own costs for this petition for review.
PETITION FOR REVIEW DENIED in part; GRANTED in part;
REMANDED.
2 08-74335