Michael Resureccion v. Eric Holder, Jr.

FILED
NOT FOR PUBLICATION MAY 05 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
MICHAEL SANGLANG No. 09-72605
RESURECCION, a.k.a. Michael
Sangalang Resurreccion, Agency No. A077-313-252
Petitioner,
MEMORANDUM *
v.
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted April 20, 2011 **
Before: RYMER, THOMAS, and PAEZ, Circuit Judges.
Michael Sanglang Resureccion, a native and citizen of the Philippines,
petitions for review of the Board of Immigration Appeals’ (“BIA”) order
dismissing his appeal from an immigration judge’s decision denying his motion to
*
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).
reopen deportation proceedings conducted in absentia and denying his motion to
remand. We have jurisdiction under 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 Resureccion’s motion to
reopen as untimely where he failed to show that he acted with the due diligence
required to warrant equitable tolling of the filing deadline. See 8 C.F.R.
§ 1003.23(b)(4)(iii)(A)(1) (motion to reopen must be filed within 180 days of
deportation order entered in absentia); Iturribarria, 321 F.3d at 897 (a petitioner
may obtain equitable tolling based on ineffective assistance of counsel as long as
he “act[ed] with due diligence in discovering the deception, fraud, or error”).
Because the agency’s conclusion that Resureccion failed to act with due
diligence upon discovering that he had been ordered removed in absentia is
dispositive, it was unnecessary for the BIA to remand his case for consideration of
whether Resureccion’s second counsel provided him with ineffective assistance.
In light of our disposition, we need not address whether Resureccion has
demonstrated sufficient compliance with Matter of Lozada, 19 I. & N. Dec. 637(BIA 1988).
PETITION FOR REVIEW DENIED.
2 09-72605