Mykhaylo Tretyak v. William Barr

• Court: Court of Appeals for the Ninth Circuit
• Decided: August 10, 2020
• Docket: 19-71476
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS AUG 10 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

MYKHAYLO TRETYAK, No. 19-71476

Petitioner, Agency No. A095-584-595

v. MEMORANDUM* WILLIAM P. BARR, Attorney General,

Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals

Submitted August 5, 2020**

Before: SCHROEDER, HAWKINS, and LEE, Circuit Judges.

Mykhaylo Tretyak, a native of the U.S.S.R. and citizen of Ukraine, petitions

for review of the Board of Immigration Appeals’ (“BIA”) order denying his

motion to reopen and reconsider. We have jurisdiction under 8 U.S.C. § 1252. We

review for abuse of discretion the denial of a motion to reopen or reconsider and

review de novo questions of law. Toor v. Lynch, 789 F.3d 1055, 1059 (9th Cir.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). 2015); 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 Tretyak’s untimely motion

for failure to demonstrate he acted with the due diligence required for equitable

tolling. See 8 U.S.C. § 1229a(c)(6)-(7); Avagyan v. Holder, 646 F.3d 672, 679 (9th

Cir. 2011) (due diligence depends on when a reasonable person would suspect the

attorney’s misconduct and whether the petitioner took reasonable steps to

investigate prior counsel’s suspected error, or, if petitioner was ignorant of

counsel’s shortcomings, made reasonable efforts to pursue relief).

Tretyak has not established that the BIA overlooked any contentions. See

Najmabadi v. Holder, 597 F.3d 983, 990 (9th Cir. 2010).

PETITION FOR REVIEW DENIED.

2 19-71476