Badillo-Tena v. Gonzales

223 F. App'x 691

Opinion

MEMORANDUM

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Luis Martin Badillo-Tena, a native and citizen of Mexico, petitions pro se for review of the Board of Immigration Appeals’ (“BIA”) order denying his motion to reopen deportation proceedings. Reviewing for abuse of discretion, Iturribarria v. INS, 321 F.3d 889, 894 (9th Cir.2003), we deny in part and dismiss in part the petition for review.

The BIA acted within its discretion in denying Badillo-Tena’s motion to reopen as untimely because it was filed over one year after the BIA’s final removal order. See 8 C.F.R. § 1003.2(c)(2) (motion to reopen must be filed no later than 90 days after the final administrative decision was rendered).

The BIA acted within its discretion by not applying equitable tolling because Badillo-Tena did not explain how he was prevented from complying with the filing deadline. See Iturribarria, 321 F.3d at 897 (equitable tolling applies where an alien is prevented from timely filing because of deception, fraud, or error); Socop-Gonzalez v. INS, 272 F.3d 1176, 1193 (9th Cir.2001) (en banc) (equitable tolling applies where an alien demonstrates that he was ignorant of the filing deadline due to circumstances beyond his control).

To the extent Badillo-Tena challenges the BIA’s April 28, 2004 order affirming, without opinion, an immigration judge’s order denying his prior motion to reconsider, we lack jurisdiction because the petition for review is not timely as to that order. See Singh v. INS, 315 F.3d 1186, 1188 (9th Cir.2003).

In light of these holdings, we do not reach Badillo-Tena’s remaining contentions.

PETITION FOR REVIEW DENIED in part; DISMISSED in part.

This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.