Pineda-Oreana v. Holder

FILED
NOT FOR PUBLICATION DEC 30 2009
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
DUNG XUONG LAM, No. 06-72442
Petitioner, Agency No. A077-378-891
v.
MEMORANDUM *
ERIC H. HOLDER Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted December 15, 2009 **
Before: GOODWIN, WALLACE, and FISHER, Circuit Judges.
Dung Xuong Lam, a native and citizen of Vietnam, petitions for review of
the Board of Immigration Appeals’ order dismissing her appeal from an
immigration judge’s (“IJ”) order denying her motion to reopen based on ineffective
*
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).
JTK/Research
assistance of counsel. We have jurisdiction pursuant to 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), and we deny the petition for review.
The agency did not abuse its discretion in denying Lam’s motion to reopen
as untimely because Lam filed the motion more than six years after the IJ’s April
15, 1999, removal order became final, see 8 C.F.R. § 1003.23(b), and Lam failed to
establish the due diligence required to warrant tolling of the motions deadline, see
Iturribarria, 321 F.3d at 897 (equitable tolling is available to a petitioner who is
prevented from filing due to deception, fraud or error, and exercises due diligence
in discovering such circumstances); cf. Ghahremani v. Gonzales, 498 F.3d 993,
1000 (9th Cir. 2007).
PETITION FOR REVIEW DENIED.
JTK/Research 2 06-72442