Cruz v. Holder

362 F. App'x 837

• Court: Court of Appeals for the Ninth Circuit
• Decided: January 21, 2010
• Docket: 07-72161
• Status: Unpublished

Opinion

MEMORANDUM **

Reynaldo Déla Cruz Cruz and Erlinda Saguiguit Cruz, natives and citizens of the Philippines, petition for review of the Board of Immigration Appeals’ (“BIA”) order denying their motion to reopen based on ineffective 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, Mo hammed v. Gonzales, 400 F.3d 785, 791 (9th Cir.2005), and we deny the petition for review.

The BIA did not abuse its discretion in denying petitioners’ motion to reopen as untimely because the motion was filed more than two years after the BIA’s June 23, 2004, order dismissing their appeal, see 8 C.F.R. § 1003.2(c)(2), and petitioners failed to establish that they acted with the due diligence required for equitable tolling, see Iturribarria v. INS, 321 F.3d 889, 897 (9th Cir.2003) (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).

The BIA’s failure to address petitioners’ request for an additional period of voluntary departure was harmless error. See 8 U.S.C. § 1229e(b)(l) (Attorney General may permit voluntary departure if immigration judge enters order granting that relief at the conclusion of removal proceedings).

In light of our disposition, we do not reach petitioners’ remaining contentions.

PETITION FOR REVIEW DENIED.

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