Irma Menendez v. Eric Holder, Jr. ( 2012 )

FILED
NOT FOR PUBLICATION MAY 23 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
IRMA JUVENTINA MENENDEZ, No. 10-70051
Petitioner, Agency No. A073-936-671
v.
MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted May 15, 2012 **
Before: CANBY, GRABER, and M. SMITH, Circuit Judges.
Irma Juventina Menendez, a native and citizen of El Salvador, petitions for
review of the Board of Immigration Appeals’ (“BIA”) order denying her 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, Ghahremani v. Gonzales, 498 F.3d
993, 997 (9th Cir. 2007), and we deny the petition for review.
The BIA did not abuse its discretion in denying Menendez’s motion to
reopen as untimely. See 8 C.F.R. § 1003.2(c)(2). Even if Menendez were entitled
to equitable tolling of the filing deadline during the representation by her former
counsels, her motion is untimely because it was filed more than ninety days after
she met with present counsel and “definitively learned” of her former counsels’
incompetence. See Ghahremani, 498 F.3d at 999-1000; see also Dela Cruz v.
Mukasey, 532 F.3d 946, 949 (9th Cir. 2008) (per curiam) (“[T]he pendency of a
petition for review of an order of removal does not toll the statutory time limit for
the filing of a motion to reopen with the BIA.”).
In light of our disposition, we need not reach Menendez’s remaining
contentions.
We note that Menendez has been granted Temporary Protected Status and
cannot be removed from the United States while she maintains this status. See 8
U.S.C. § 1254a(a)(1)(A).
The Clerk shall amend the docket to reflect that the sole petitioner is Irma
Juventina Menendez, A073-936-671. The substance of the underlying motion to
reopen relates solely to Irma Juventina Menendez. Because Melvin Ernesto
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Menendez did not file a separate petition for review and cannot derive any status
from his mother’s applications for relief, his case is not before us.
PETITION FOR REVIEW DENIED.
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