Cruz v. Holder , 362 F. App'x 837 ( 2010 )

FILED
NOT FOR PUBLICATION JAN 21 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
REYNALDO DELA CRUZ CRUZ; No. 07-72161
ERLINDA SAGUIGUIT CRUZ,
Agency Nos. A072-512-224
Petitioners, A072-514-749
v.
MEMORANDUM *
ERIC H. HOLDER Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted January 11, 2010 **
Before: BEEZER, TROTT, and BYBEE, Circuit Judges.
Reynaldo Dela Cruz Cruz and Erlinda Saguiguit Cruz, natives and citizens
of the Philippines, petition for review of the Board of Immigration Appeals’
(“BIA”) order denying their motion to reopen based on ineffective assistance of
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
KS/Research
counsel. We have jurisdiction pursuant to 8 U.S.C. § 1252. We review for abuse
of discretion the denial of a motion to reopen, Mohammed v. Gonzales, 400 F.3d
785, 791 (9th Cir. 2005), and we deny 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 two years after the
BIA’s June 23, 2004, order dismissing their appeal, see 8 C.F.R. § 1003.2(c)(2),
and petitioners failed to establish that they acted with the due diligence required for
equitable tolling, see Iturribarria v. INS, 321 F.3d 889, 897 (9th Cir. 2003)
(equitable tolling is available to a petitioner who is prevented from filing due to
deception, fraud or error, and exercises due diligence in discovering such
circumstances).
The BIA’s failure to address petitioners’ request for an additional period of
voluntary departure was harmless error. See 8 U.S.C. § 1229c(b)(1) (Attorney
General may permit voluntary departure if immigration judge enters order granting
that relief at the conclusion of removal proceedings).
In light of our disposition, we do not reach petitioners’ remaining
contentions.
PETITION FOR REVIEW DENIED.
KS/Research 2 07-72161