Fernando Barcenas-Carranza v. Eric Holder, Jr. , 485 F. App'x 254 ( 2012 )

FILED
NOT FOR PUBLICATION OCT 12 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
FERNANDO BARCENAS-CARRANZA; No. 10-72107
MARIA DEL ROSARIO FLORES-
ABARCA, Agency Nos. A096-047-956
A096-047-957
Petitioners,
v. MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted October 9, 2012 **
Before: RAWLINSON, MURGUIA, and WATFORD, Circuit Judges.
Fernando Barcenas-Carranza and Maria Del Rosario Flores-Abarca, natives
and citizens of Mexico, 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 concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
counsel. We have jurisdiction under 8 U.S.C. § 1252. We review for abuse of
discretion the denial of a motion to reopen, Avagyan v. Holder, 646 F.3d 672, 674
(9th Cir. 2011), and we deny the petition for review.
The BIA did not abuse its discretion in denying petitioners’ motion to
reopen as untimely where petitioners failed to establish that they filed the motion
within 90 days of meeting with present counsel and learning of the harm resulting
from the alleged actions of their former representative. See id. at 679 (equitable
tolling period ends, and 90-day filing period begins, “when petitioner definitively
learns of the harm resulting from counsel’s deficiency”). No ineffective assistance
claim has been raised against present counsel.
This disposition in no way precludes petitioners from filing a subsequent
motion to reopen with the BIA if circumstances exist that would support further
examination of their case.
The Clerk is instructed to serve this disposition not only on petitioners’
counsel, but also on petitioners at 542 East Phillips Street, Ontario, California,
91761-0000.
PETITION FOR REVIEW DENIED.
2 10-72107