Misak Teryan v. Eric H. Holder Jr. , 431 F. App'x 572 ( 2011 )

FILED
NOT FOR PUBLICATION MAY 05 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
MISAK TERYAN; MARI TERYAN, No. 08-75183
Petitioners, Agency Nos. A095-191-276
A095-191-277
v.
ERIC H. HOLDER, Jr., Attorney General, MEMORANDUM *
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted April 20, 2011 **
Before: RYMER, THOMAS, and PAEZ, Circuit Judges.
Misak Teryan and Mari Teryan, natives of Greece and citizens of Armenia,
petition for review of the Board of Immigration Appeals’ (“BIA”) order denying
their motion to reopen. We have jurisdiction under 8 U.S.C. § 1252. We review
for abuse of discretion the denial of a motion to reopen, Singh v. Gonzales, 491
*
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).
F.3d 1090, 1095 (9th Cir. 2007), and we deny in part and grant in part the petition
for review.
The BIA did not abuse its discretion in denying petitioners’ motion to
reopen as untimely because the motion was filed more than four years after the
BIA’s February 24, 2004, order dismissing the underlying appeal, see 8 C.F.R.
§ 1003.2(c)(2) (motion to reopen must generally be filed within 90 days of the final
administrative order), and petitioners failed to establish grounds for equitable
tolling, see Iturribarria v. INS, 321 F.3d 889, 897-98 (9th Cir. 2003).
Petitioners’ contention that an immigration consultant they knew was not a
lawyer provided them with ineffective assistance of counsel is foreclosed. See
Hernandez v. Mukasey, 524 F.3d 1014, 1020 (9th Cir. 2008) (holding that knowing
reliance upon the advice of a non-attorney cannot support a claim for ineffective
assistance of counsel in a removal proceeding).
Because the BIA failed to address petitioners’ request that it exercise its sua
sponte authority to reopen proceedings, we remand for the BIA to consider
petitioners’ request in the first instance. See Montes–Lopez v. Gonzales, 486 F.3d
1163, 1165 (9th Cir. 2007).
Each party shall bear its own costs for this petition for review.
PETITION FOR REVIEW DENIED in part; GRANTED in part.
2 08-75183