Jose Aragon v. Eric Holder, Jr. , 559 F. App'x 617 ( 2014 )

FILED
NOT FOR PUBLICATION FEB 28 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOSE N. ARAGON, No. 12-70411
Petitioner, Agency No. A074-422-167
v.
MEMORANDUM*
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted February 18, 2014**
Before: ALARCÓN, O’SCANNLAIN, and FERNANDEZ, Circuit Judges.
Jose N. Aragon, a native and citizen of El Salvador, petitions pro se for
review of the Board of Immigration Appeals’ order dismissing his appeal from an
immigration judge’s denial of his motion to reopen removal proceedings based on
ineffective assistance of counsel. Our jurisdiction is governed by 8 U.S.C. § 1252.
*
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).
We review for abuse of discretion the denial of a motion to reopen. Avagyan v.
Holder, 646 F.3d 672, 674 (9th Cir. 2011). We deny in part and dismiss in part the
petition for review.
The agency did not abuse its discretion in denying Aragon’s motion to
reopen as untimely where the motion was filed more than twelve years after his
removal order became final, see 8 C.F.R. § 1003.23(b)(1), and Aragon failed to
establish the due diligence required for equitable tolling of the filing deadline, see
Avagyan, 646 F.3d at 679 (equitable tolling is available to a petitioner who is
prevented from filing because of deception, fraud or error, and exercised due
diligence in discovering such circumstances).
We lack jurisdiction to consider Aragon’s contention that he received
ineffective assistance of counsel from the attorney who prepared his motion to
reopen because Aragon failed to raise this contention before the agency. See Tijani
v. Holder, 628 F.3d 1071, 1080 (9th Cir. 2010).
In light of this disposition, we need not reach Aragon’s remaining
contentions.
PETITION FOR REVIEW DENIED in part; DISMISSED in part.
2 12-70411