Abel Arciga-Lorenzano v. Eric Holder, Jr.

FILED
NOT FOR PUBLICATION MAY 28 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ABEL ARCIGA-LORENZANO; BRIAN No. 13-70922
ARCIGA-ZARATE,
Agency Nos. A075-476-280
Petitioners, A075-476-282
v.
MEMORANDUM*
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted May 13, 2014**
Before: CLIFTON, BEA, and WATFORD, Circuit Judges.
Abel Arciga-Lorenzano and Brian Arciga-Zarate, natives and citizens of
Mexico, petition for review of an order of the Board of Immigration Appeals
(“BIA”) denying their motion to reopen deportation proceedings. We have
jurisdiction under 8 U.S.C. § 1252. We review for abuse of discretion the denial 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).
a motion to reopen. Avagyan v. Holder, 646 F.3d 672, 674 (9th Cir. 2011). We
deny the petition for review.
As the government concedes, Arciga-Lorenzano’s departure from the United
States did not deprive the BIA of jurisdiction to consider his motion to reopen. See
Reyes-Torres v. Holder, 645 F.3d 1073, 1077 (9th Cir. 2011).
The BIA did not abuse its discretion by denying as untimely petitioners’
motion to reopen based on ineffective assistance of counsel because petitioners
filed their motion eight years after their order of deportation became
administratively final, see 8 U.S.C. § 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2),
and failed to demonstrate the due diligence necessary to warrant equitable tolling
of the filing deadline, see Avagyan, 646 F.3d at 680-81 (finding no due diligence
by a petitioner who “had reason to suspect” that her former attorneys had not
adequately prepared her case but who nevertheless “took no affirmative steps to
investigate” their errors after the BIA had denied her appeal).
PETITION FOR REVIEW DENIED.
2 13-70922