Herrera-Sanchez v. Holder

346 F. App'x 279

• Court: Court of Appeals for the Ninth Circuit
• Decided: October 2, 2009
• Docket: No. 07-73333
• Status: Published

Opinion

MEMORANDUM

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Marco Antonio Herrera-Sanchez, citizen and native of Mexico, petitions for review of the Board of Immigration Appeals’ (BIA) order denying his motion to reopen. We have jurisdiction under 8 U.S.C. § 1252. We deny the petition for review.

The BIA did not abuse its discretion when it denied Herrera-Sanchez’s motion to reopen and rejected his argument for equitable tolling. See Mohammed v. Gonzales, 400 F.3d 785, 791 (9th Cir.2005). First, the BIA correctly denied Herrera-Sanchez’s motion as untimely because it was filed almost twelve years after his final deportation order. See 8 U.S.C. § 1229a(c)(7). Second, equitable tolling is unavailable to Herrera-Sanchez because he did not establish prejudice from the alleged ineffective assistance of counsel. See Iturribarria v. INS, 321 F.3d 889, 897 (9th Cir.2003). Herrera-Sanchez’s underlying claim for relief is not plausible because his claim for concurrent adjustment of status and an 8 U.S.C. § 1182(c) waiver under Matter of Gabryelsky, 20 I. & N. Dec. 750 (BIA 1993) is speculative at best. See Lin v. Ashcroft, 377 F.3d 1014, 1027 (9th Cir.2004); see 8 C.F.R. § 1003.2(c)(1).

PETITION FOR REVIEW DENIED.

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