Edgar Lara-Garcia v. Eric Holder, Jr. ( 2012 )

FILED
NOT FOR PUBLICATION SEP 24 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
EDGAR SAMUEL LARA-GARCIA, No. 10-73195
Petitioner, Agency No. A072-307-959
v.
MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted September 10, 2012 **
Before: WARDLAW, CLIFTON, and N.R. SMITH, Circuit Judges.
Edgar Samuel Lara-Garcia, a native and citizen of Guatemala, petitions for
review of an order of the Board of Immigration Appeals (“BIA”) denying his
motion to reopen deportation proceedings. Our jurisdiction is governed by
8 U.S.C. § 1252. Reviewing for abuse of discretion the BIA’s denial of a motion
*
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).
to reopen, Avagyan v. Holder, 646 F.3d 672, 674 (9th Cir. 2011) (citation omitted),
we deny in part and dismiss in part the petition for review.
The BIA did not abuse its discretion by denying Lara-Garcia’s motion to
reopen as untimely because the motion was filed approximately 13 years after
issuance of the final administrative order, see 8 C.F.R. §§ 1003.2(c)(2), 1241.31,
and Lara-Garcia failed to demonstrate the due diligence necessary to warrant
equitable tolling of the filing deadline, where his motion did not state when he had
definitively learned of the alleged ineffective assistance of his former attorney, see
Avagyan, 646 F.3d at 679 (measuring the end of the tolling period from “when
petitioner definitively learns of the harm resulting from counsel’s deficiency”).
We lack jurisdiction to review Lara-Garcia’s due process challenge to the
BIA’s decision to invoke the summary-affirmance procedure in its 2001 order,
because he failed to raise this contention in his motion to reopen before the BIA.
See Tijani v. Holder, 628 F.3d 1071, 1079 (9th Cir. 2010) (“We lack jurisdiction to
review legal claims not presented in an alien’s administrative proceedings before
the BIA.”).
Finally, because our determination regarding the untimeliness of Lara-
Garcia’s motion to reopen is dispositive of his petition for review, we decline to
consider his assertion that he remains prima facie eligible for relief from removal.
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See Mendez-Alcaraz v. Gonzales, 464 F.3d 842, 844 (9th Cir. 2006) (declining to
reach nondispositive challenges to a BIA order).
PETITION FOR REVIEW DENIED in part; DISMISSED in part.
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