Pedro Rodriguez Duran v. Loretta E. Lynch ( 2016 )

FILED
NOT FOR PUBLICATION OCT 05 2016
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
PEDRO RODRIGUEZ DURAN, No. 14-70012
Petitioner, Agency No. A095-449-983
v.
MEMORANDUM*
LORETTA E. LYNCH, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted September 27, 2016**
Before: TASHIMA, SILVERMAN, and M. SMITH, Circuit Judges.
Pedro Rodriguez Duran, a native and citizen of Mexico, petitions pro se for
review of the Board of Immigration Appeals’ order dismissing his appeal from an
immigration judge’s decision denying his motion to reopen removal proceedings
based on ineffective assistance of counsel. We have jurisdiction under 8 U.S.C.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
§ 1252. We review for abuse of discretion the denial of a motion to reopen.
Avagyan v. Holder, 646 F.3d 672, 678 (9th Cir. 2011). We deny the petition for
review.
The agency did not abuse its discretion in denying Rodriguez Duran’s
motion to reopen as untimely where the motion was filed more than three years
after his removal order became final, see 8 C.F.R. § 1003.2(c)(2), and Rodriguez
Duran failed to establish the due diligence required for equitable tolling of the
filing deadline, see Avagyan, 646 F.3d at 679 (equitable tolling is available to a
petitioner who is prevented from filing because of deception, fraud or error, as long
as the petitioner exercised due diligence in discovering such circumstances).
In light of our disposition, we do not reach Rodriguez Duran’s remaining
contention regarding tolling of the numerical bar. See Simeonov v. Ashcroft, 371
F.3d 532, 538 (9th Cir. 2004) (the court need not reach a contention when another
dispositive determination has been made).
We deny Rodriguez Duran’s request for remand for the purposes of
prosecutorial discretion. See Vilchiz-Soto v. Holder, 688 F.3d 642, 644 (9th Cir.
2012) (order).
PETITION FOR REVIEW DENIED.
2 14-70012