Garcia v. Holder , 382 F. App'x 560 ( 2010 )

FILED
NOT FOR PUBLICATION JUN 03 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
RESHAM SINGH; RANJIT SINGH No. 07-71652
RANA; KAMAL PREET KAUR;
BALBIR KAUR, Agency Nos. A095-413-662
A095-413-663
Petitioners, A095-413-664
A095-413-665
v.
ERIC H. HOLDER, Jr., Attorney General, MEMORANDUM *
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted May 25, 2010 **
Before: CANBY, THOMAS, and W. FLETCHER, Circuit Judges.
Resham Singh and his family, natives and citizens of India, petition for
review of the Board of Immigration Appeals’ (“BIA”) order denying their motion
to reopen based on ineffective assistance of counsel. Our jurisdiction is governed
*
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).
by 8 U.S.C. § 1252. We review for abuse of discretion the denial of a motion to
reopen. Iturribarria v. INS, 321 F.3d 889, 894 (9th Cir. 2003). 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 the motion was filed more than two years after the BIA’s
September 17, 2004, order dismissing petitioners’ appeal, see 8 C.F.R.
§ 1003.2(c)(2), and petitioners failed to establish the late filing was due to
deception, fraud or error of former counsel to warrant equitable tolling, see
Iturribarria, 321 F.3d at 897.
We lack jurisdiction to review the BIA’s decision not to invoke its sua
sponte authority to reopen proceedings. See Ekimian v. INS, 303 F.3d 1153, 1159
(9th Cir. 2002).
PETITION FOR REVIEW DENIED in part; DISMISSED in part.
2 07-71652