Perez Huerta v. Holder

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 12, 2010
• Docket: 07-73411
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION APR 12 2010

MOLLY C. DWYER, CLERK UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS

FOR THE NINTH CIRCUIT

JOSE MANUEL PEREZ HUERTA, No. 07-73411

Petitioner, Agency No. A095-179-270

v. MEMORANDUM * ERIC H. HOLDER Jr., Attorney General,

Respondent.

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

Submitted April 5, 2010 **

Before: RYMER, McKEOWN, and PAEZ, Circuit Judges.

Jose Manuel Perez Huerta, a native and citizen of Mexico, petitions for

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

reopen based on ineffective assistance of counsel. Our jurisdiction is governed by

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). 8 U.S.C. § 1252. We review for abuse of discretion the BIA’s denial of a motion

to reopen and review de novo constitutional claims, including claims of ineffective

assistance of counsel. Mohammed v. Gonzales, 400 F.3d 785, 791-92 (9th Cir.

2005). We deny in part and dismiss in part the petition for review.

The BIA did not abuse its discretion in denying Perez Huerta’s motion to

reopen as untimely because he filed his motion to reopen nine months after the

BIA’s July 17, 2006, order, 8 C.F.R. § 1003.2(c)(2), and failed to establish grounds

for equitable tolling, see Iturribarria v. INS, 321 F.3d 889, 897-98 (9th Cir. 2003).

We lack jurisdiction to review Perez Huerta’s claim that the BIA should

have granted his motion to reopen to apply for adjustment of status under Matter of

Velarde-Pacheco, 23 I. & N. Dec. 253 (BIA 2002) (en banc), because he failed to

exhaust this claim before the agency. See Barron v. Ashcroft, 358 F.3d 674, 678

(9th Cir. 2004).

PETITION FOR REVIEW DENIED in part; DISMISSED in part.

2 07-73411