Edgar Escobar-Alarcon v. Eric Holder, Jr. , 591 F. App'x 614 ( 2015 )

FILED
NOT FOR PUBLICATION JAN 30 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
EDGAR MORRIS ESCOBAR- No. 12-72820
ALARCON,
Agency No. A070-097-323
Petitioner,
v. MEMORANDUM*
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted January 21, 2015**
Before: CANBY, GOULD, and N.R. SMITH, Circuit Judges.
Edgar Morris Escobar-Alarcon, a native and citizen of El Salvador, petitions
for review of the Board of Immigration Appeals’ (“BIA”) order denying his
motion to reopen deportation proceedings based on ineffective assistance of
counsel. We have jurisdiction under 8 U.S.C. § 1252. We review for abuse of
*
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).
discretion the denial of a motion to reopen. Mohammed v. Gonzales, 400 F.3d 785,
791 (9th Cir. 2005). We deny the petition for review.
The BIA did not abuse its discretion in denying Escobar-Alarcon’s motion to
reopen as untimely, where he filed the motion more than four years after his
deportation order became final, see 8 C.F.R. § 1003.2(c)(2) (a motion to reopen
must be filed within 90 days of a final order), and failed to establish the due
diligence required to warrant equitable tolling of the motions deadline, see
Avagyan v. Holder, 646 F.3d 672, 679 (9th Cir. 2011) (equitable tolling is
available to a petitioner who is prevented from timely filing a motion to reopen due
to deception, fraud or error, as long as petitioner exercises due diligence in
discovering such circumstances).
Because the timeliness determination is dispositive, we do not reach
Escobar-Alarcon’s remaining contentions.
This dismissal is without prejudice to petitioner’s seeking prosecutorial
discretion or deferred action from the Department of Homeland Security. See
Reno v. American-Arab Anti-Discrimination Committee (AADC), 525 U.S. 471,
483-85 (1999) (stating that prosecutorial discretion by the agency can be granted at
any stage, including after the conclusion of judicial review).
PETITION FOR REVIEW DENIED.
12-72820