Dearas-Kurilich v. Ashcroft , 65 F. App'x 656 ( 2003 )

MEMORANDUM^***

Dora Isabel Dearas-Kurüich, a native and citizen of Honduras, petitions for review of the order of the Board of Immigration Appeals (“BIA”) denying as untimely her motion to reopen. Because the transitional rules apply, we have jurisdiction under 8 U.S.C. § 1105a(a). See Socop-Gonzalez v. INS, 272 F.3d 1176, 1183 (9th Cir.2001) (en banc). We review the denial of a motion to reopen for abuse of discretion, and legal issues de novo. Rodriguez-Lariz v. INS, 282 F.3d 1218, 1222 (9th Cir.2002). We deny the petition.

Because the government concedes that the BIA mailed its decision to an incorrect address, we have jurisdiction to review Dearas-Kurilich’s otherwise untimely petition. See Marbinez-Serrano v. INS, 94 F.3d 1256, 1259 (9th Cir.1996) (holding that jurisdictional period to file petition for review did not begin to run until BIA mailed copy of decision to correct address).

Dearas-Kurilich contends that the BIA should have equitably tolled the deadline for filing a motion to reopen due to the misconduct of her prior attorney. We disagree. The evidence in the record does not support a finding that Dearas-Kurilich’s former attorney engaged in fraudulent or deceptive conduct. Accordingly, equitable tolling is not warranted. See Iturribarria v. INS, 321 F.3d 889, 897-98 (9th Cir.2003) (holding that equitable tolling is available where petitioner’s attorney engaged in fraudulent or deceptive acts).

Because Dearas-Kurlichich’s motion to reopen was untimely, we do not reach the merits of her ineffective assistance of counsel claims.

PETITION DENIED.

*** This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.