Enkhbat Arild v. Eric Holder, Jr.

FILED
NOT FOR PUBLICATION MAY 20 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ENKHBAT ARILD and No. 11-70583
CHULUUNTSETSEEG SHAGDAR,
Agency Nos. A098-536-665
Petitioners, Agency Nos. A098-536-666
v.
MEMORANDUM*
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted May 14, 2013**
Before: LEAVY, THOMAS, and MURGUIA, Circuit Judges.
Enkhbat Arild and Chuluuntsetseeg Shagdar, natives and citizens of
Mongolia, petition for review of the Board of Immigration Appeals’ (“BIA”) order
denying their motion to reopen based on ineffective assistance of counsel. We
have jurisdiction under 8 U.S.C. § 1252. We review for abuse of discretion the
*
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).
denial of a motion to reopen, Mohammed v. Gonzales, 400 F.3d 785, 791 (9th Cir.
2005), and we deny the petition for review.
The BIA did not abuse its discretion in denying petitioners’ motion to
reopen as untimely where the motion was filed nearly four years after the BIA’s
September 2006 order, see 8 C.F.R. § 1003.2(c)(2), and petitioners failed to
establish that they acted with the due diligence required for equitable tolling of the
filing deadline, see Avagyan v. Holder, 646 F.3d 672, 678-80 (9th Cir. 2011)
(equitable tolling is available to a petitioner who is prevented from filing because
of deception, fraud or error, and exercised due diligence in discovering such
circumstances).
In light of our disposition, we need not reach petitioners’ remaining
contentions.
PETITION FOR REVIEW DENIED.
2 11-70583