De La Cruz v. Gonzales

152 F. App'x 597

• Court: Court of Appeals for the Ninth Circuit
• Decided: October 19, 2005
• Docket: No. 04-74122
• Status: Published

Opinion

MEMORANDUM

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Hugo De La Cruz, a native and citizen of Mexico, petitions for review of the Board of Immigration Appeals’ (“BIA”) dismissal of his appeal from an immigration judge’s (“IJ”) denial of his motion to reopen removal proceedings conducted in absentia due to ineffective assistance of counsel. We have jurisdiction pursuant to 8 U.S.C. § 1252. We review the denial of a motion to reopen for abuse of discretion. See Iturribarria v. INS, 321 F.3d 889, 894 (9th Cir.2003). We deny the petition for review.

The BIA did not abuse its discretion in denying De La Cruz’s motion to reopen based on ineffective assistance of counsel as untimely, because De La Cruz had knowledge of the alleged ineffective assistance for over a year before he filed his motion to reopen. See id. at 897-98 (holding that a petitioner must act with due diligence when pursuing an ineffective assistance of counsel claim to benefit from equitable tolling of deadlines).

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 9th Cir. R. 36-3.