Manuel Matzar Nix v. Eric Holder, Jr. ( 2012 )

FILED
NOT FOR PUBLICATION NOV 16 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
MANUEL DE JESUS MATZAR NIX, No. 10-71565
Petitioner, Agency No. A070-818-961
v.
MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted November 13, 2012 **
Before: CANBY, TROTT, and W. FLETCHER, Circuit Judges.
Manuel De Jesus Matzar Nix, a native and citizen of Guatemala, petitions
for review of the Board of Immigration Appeals’ (“BIA”) order denying his
motion to reopen removal proceedings. We have jurisdiction under 8 U.S.C. §
1252. We review for abuse of discretion the denial of a motion to reopen, Toufighi
*
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).
v. Mukasey, 538 F.3d 988, 992 (9th Cir. 2008), and we deny the petition for
review.
The BIA did not abuse its discretion in denying Nix’s motion to reopen as
untimely where the motion was filed over twelve years after the agency’s final
order, see 8 C.F.R. § 1003.2(c)(2), and Nix failed to demonstrate changed
circumstances in Guatemala to qualify for the regulatory exception to the time limit
for filing motions to reopen, see 8 C.F.R. § 1003.2(c)(3)(ii); see also Toufighi, 538
F.3d at 996 (requiring movant to produce material evidence of change in the
country of origin that would establish prima facie eligibility for relief). Further,
the agency did not abuse its discretion in declining to equitably toll the filing
deadline based on Nix’s claim of ineffective assistance of counsel, because Nix
failed to show he acted with due diligence during the twelve years since the final
administrative decision. See Avagyan v. Holder, 646 F.3d 672, 679 (9th Cir. 2011)
(equitable tolling is available where petitioner is prevented from filing because of
deception, fraud, or error, as long as petitioner exercised due diligence in
discovering such circumstances); see also Iturribarria v. INS, 321 F.3d 889, 897
(9th Cir. 2003) (due diligence required for a motion to reopen deportation
proceedings based on ineffective assistance).
PETITION FOR REVIEW DENIED.
2 10-71565