Mykhaylo Tretyak v. William Barr ( 2020 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS AUG 10 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MYKHAYLO TRETYAK, No. 19-71476
Petitioner, Agency No. A095-584-595
v.
MEMORANDUM*
WILLIAM P. BARR, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted August 5, 2020**
Before: SCHROEDER, HAWKINS, and LEE, Circuit Judges.
Mykhaylo Tretyak, a native of the U.S.S.R. and citizen of Ukraine, petitions
for review of the Board of Immigration Appeals’ (“BIA”) order denying his
motion to reopen and reconsider. We have jurisdiction under 8 U.S.C. § 1252. We
review for abuse of discretion the denial of a motion to reopen or reconsider and
review de novo questions of law. Toor v. Lynch, 789 F.3d 1055, 1059 (9th Cir.
*
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).
2015); Iturribarria v. INS, 321 F.3d 889, 894 (9th Cir. 2003). We deny the petition
for review.
The BIA did not abuse its discretion in denying Tretyak’s untimely motion
for failure to demonstrate he acted with the due diligence required for equitable
tolling. See 8 U.S.C. § 1229a(c)(6)-(7); Avagyan v. Holder, 646 F.3d 672, 679 (9th
Cir. 2011) (due diligence depends on when a reasonable person would suspect the
attorney’s misconduct and whether the petitioner took reasonable steps to
investigate prior counsel’s suspected error, or, if petitioner was ignorant of
counsel’s shortcomings, made reasonable efforts to pursue relief).
Tretyak has not established that the BIA overlooked any contentions. See
Najmabadi v. Holder, 597 F.3d 983, 990 (9th Cir. 2010).
PETITION FOR REVIEW DENIED.
2 19-71476