Bernal v. Gonzales

139 F. App'x 853

• Court: Court of Appeals for the Ninth Circuit
• Decided: July 15, 2005
• Docket: No. 04-72164
• Status: Published

Opinion

MEMORANDUM

**

Jose Alonso Bernal, a native and citizen of Mexico, petitions for review of the Board of Immigration Appeals’ (“BIA”) order denying his motion to reopen deportation proceedings. We have jurisdiction under former 8 U.S.C. § 1105a(a). See Iturribarria v. INS, 321 F.3d 889, 894 (9th Cir.2003). Reviewing for abuse of discretion, see id., we deny the petition for review.

Bernal did not file the instant motion to reopen until eight years after he was ordered deported in absentia, well after the 180-day deadline. See 8 U.S.C. § 1252b(c)(3)(A) (repealed 1996). While equitable tolling applies to deadlines where a petitioner is the victim of deception, fraud, or error, the petitioner must still exercise due diligence. See Iturribarria, 321 F.3d at 897. Bernal made no attempt to contact new counsel until August 2003, six years after he alleges that he could no longer contact the immigration consultant he accuses of misconduct. Under these circumstances, the BIA acted well within its discretion in denying Bernal’s motion to reopen as untimely. Id. at 898.

PETITION FOR REVIEW DENIED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.