David Zepeda-Ruiz v. Eric Holder, Jr.

FILED
NOT FOR PUBLICATION JUL 31 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
DAVID ZEPEDA-RUIZ, No. 12-70680
Petitioner, Agency No. A075-759-000
v.
MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted July 24, 2013 **
Before: ALARCÓN, CLIFTON, and CALLAHAN, Circuit Judges.
David Zepeda-Ruiz, a native and citizen of Mexico, petitions for review of
an order of the Board of Immigration Appeals (“BIA”) denying his motion to
reopen. We have jurisdiction under 8 U.S.C. § 1252. Reviewing for abuse of
discretion the BIA’s denial of the motion to reopen, Granados-Oseguera v.
*
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).
Mukasey, 546 F.3d 1011, 1014 (9th Cir. 2008) (per curiam), we deny the petition
for review.
The BIA did not abuse its discretion by denying Zepeda-Ruiz’s motion to
reopen due to his lack of prima facie eligibility for relief from removal because his
failure to depart the United States in accordance with his grant of voluntary
departure rendered him statutorily ineligible for cancellation of removal. See
8 U.S.C. § 1229c(d)(1); see also Granados-Oseguera, 546 F.3d at 1015 (“[Where
a] motion to reopen [i]s filed after the period for voluntary departure ha[s]
elapsed . . . , the BIA [i]s not simply correct to deny the motion; it [i]s compelled to
do so by the operation of 8 U.S.C. § 1229c(d)(1).”). Our case law forecloses
Zepeda-Ruiz’s contention that his claim of ineffective assistance of counsel
surmounts the voluntary-departure bar. See Granados-Oseguera, 546 F.3d at 1016
(“Even assuming . . . ineffective assistance of counsel, the statutory bars on relief
would nonetheless control . . . .”).
Zepeda-Ruiz’s contentions regarding equitable tolling and continuous
physical presence fall beyond the scope of our review. See Andia v. Ashcroft,
359 F.3d 1181, 1184 (9th Cir. 2004) (per curiam) (“In reviewing the decision of
the BIA, we consider only the grounds relied upon by that agency.”).
PETITION FOR REVIEW DENIED.
2 12-70680