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

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NOT FOR PUBLICATION NOV 23 2012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.
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