Margarita Corcino-Osornio v. Eric Holder, Jr. ( 2012 )

FILED
NOT FOR PUBLICATION SEP 17 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
MARGARITA FRANCISCA CORCINO- No. 11-71181
OSORNIO, a.k.a. Margarita Corsena
Ocenario; PEDRO BARRERA, a.k.a. Agency Nos. A098-460-177
Pedro Parrera, Agency Nos. A098-460-178
Petitioners,
MEMORANDUM *
v.
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.
Margarita Francisca Corcino-Osornio and Pedro Barrera, natives and
citizens of Mexico, petition for review of the Board of Immigration Appeals’
*
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).
(“BIA”) order denying their motion to reopen removal proceedings. Our
jurisdiction is governed by 8 U.S.C. § 1252. We review for abuse of discretion the
denial of a motion to reopen, and review de novo questions of law. Mohammed v.
Gonzales, 400 F.3d 785, 791-92 (9th Cir. 2005). We deny in part and dismiss in
part the petition for review.
The BIA did not abuse its discretion in denying petitioners’ motion to
reopen as untimely where they filed the motion more than thirteen months after
their final order of removal, see 8 C.F.R. § 1003.2(c)(2) (motion to reopen must be
filed within 90 days of final order), and failed to show the due diligence required
for equitable tolling of the filing deadline, see Avagyan v. Holder, 646 F.3d 672,
678-80 (9th Cir. 2011) (equitable tolling is available to a petitioner who establishes
that he suffered from deception, fraud or error, and exercised due diligence in
discovering such circumstances). It follows that petitioners’ due process claim
fails. See Lata v. INS, 204 F.3d 1241, 1246 (9th Cir. 2000) (petitioner must show
error and prejudice to establish a due process violation).
We lack jurisdiction to review petitioners’ contention that their second
attorney provided ineffective assistance of counsel because they failed to raise that
claim before the BIA, and thereby failed to exhaust their administrative remedies.
2 11-71181
See Tijani v. Holder, 628 F.3d 1071, 1080 (9th Cir. 2010) (no jurisdiction to
review legal claims not presented before the BIA).
PETITION FOR REVIEW DENIED in part; DISMISSED in part.
3 11-71181