Diego Armando Segundo v. Holder , 488 F. App'x 261 ( 2012 )


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  •                                                                            FILED
    NOT FOR PUBLICATION                             NOV 23 2012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
    DIEGO ARMANDO SEGUNDO,                           No. 06-70398
    Petitioner,                        Agency No. A078-371-019
    v.
    MEMORANDUM *
    ERIC H. HOLDER, JR., Attorney General,
    Respondent.
    On Petition for Review of an Order of the
    Board of Immigration Appeals
    Argued June 13, 2011; Resubmitted October 31, 2012
    San Francisco, California
    Before: SCHROEDER, RIPPLE,** and GRABER, Circuit Judges.
    Diego Armando Segundo, a native and citizen of Mexico, has petitioned for
    review of the Board of Immigration Appeals’ (“BIA”) dismissal of his appeal from
    an immigration judge’s denial of his application for cancellation of removal for
    failure to meet the ten-year continuous presence requirement. We previously
    *
    This disposition is not appropriate for publication and is not precedent
    except as provided by 9th Cir. R. 36-3.
    **
    The Honorable Kenneth F. Ripple, Senior United States Circuit Judge
    for the Seventh Circuit, sitting by designation.
    referred his petition to the court’s mediation office, along with those of his co-
    petitioners. Their cases in this court have been terminated, and we are asked to
    decide only Armando Segundo’s petition.
    Petitioner seeks relief from the ten-year continuous presence requirement
    under the equitable-tolling doctrine due to the bad advice he received from prior
    counsel, and he argues that the BIA’s failure to grant such relief violated his due
    process rights. As a result, he argues that the end date of his continuous presence
    should be equitably tolled, or extended, from the date on which he received his
    Notice to Appear to the date on which he retained competent counsel.
    It is clear that Petitioner’s original counsel misadvised him to apply for relief
    when he had not yet met the ten-year period of continuous presence required for
    cancellation of removal. Equitable tolling, however, cannot be applied in cases
    such as this one, where the unfairness stems from the conduct of counsel, which is
    “exterior to immigration procedures themselves.” Hernandez-Mancilla v. Holder,
    
    633 F.3d 1182
    , 1186 (9th Cir. 2011) (citing Lara-Torres v. Ashcroft, 
    383 F.3d 968
    ,
    973 (9th Cir. 2004), as amended by 
    404 F.3d 1105
     (9th Cir. 2005)). We have also
    held that such conduct by counsel does not constitute a due process violation.
    Lara-Torres, 
    383 F.3d at 973
    .
    PETITION DENIED.
    2
    

Document Info

Docket Number: 06-70398

Citation Numbers: 488 F. App'x 261

Judges: Schroeder, Ripple, Graber

Filed Date: 11/23/2012

Precedential Status: Non-Precedential

Modified Date: 11/6/2024