ESTRADA-HERRERA v. GONZALES, 240 Fed.Appx. 235 (9th Cir. 2007)

Ignacio ESTRADA-HERRERA, Petitioner, v. Alberto R. GONZALES, Attorney General, Respondent.

No. 06-70658.United States Court of Appeals, Ninth Circuit.Submitted August 27, 2007[*] .
Filed September 6, 2007.

[EDITOR’S NOTE: This case is unpublished as indicated by the issuing court.]

[*] The panel unanimously finds this case suitable for decision without oral argument. See Fed.R.App.P. 34(a)(2).

Linnette Tano Clark, Law Office of Linnette Tano Clark, Los Angeles, CA, for Petitioner.

CAC-District Counsel, Esq., Office of the District Counsel, Department of Homeland Security, Los Angeles, CA, Ronald E. Lefevre, Chief Counsel, Office of the District Counsel, Department of Homeland Security, San Francisco, CA, OIL, Lindsay L. Chichester, DOJ — U.S. Department of Justice Civil Div./Office of Immigration Lit., Washington, DC, for Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A92-404-232.

Before: WALLACE, LEAVY and THOMAS, Circuit Judges.

MEMORANDUM[**]

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

Ignacio Estrada-Herrera, a native and citizen of Mexico, petitions for review of the Board of Immigration Appeals’ (“BIA”) order denying his motion to reconsider its order denying his motion to reopen removal proceedings. We have jurisdiction under 8 U.S.C. § 1252. We review for abuse of discretion the denial of a motion to reconsider, see Cano-Merida v. INS, 311 F.3d 960, 964 (9th Cir. 2002), and deny the petition for review.

The BIA did not abuse its discretion in denying the petitioners’ motion to reconsider because they failed to show an error of law or fact in the BIA’s prior decision dismissing their appeal. See Iturribarria v. INS, 321 F.3d 889, 894 (9th Cir. 2003); 8 C.F.R. § 1003.2(b)(1). The BIA properly concluded that equitable tolling did not apply where Estrada-Herrera failed to provide evidence that he acted with due diligence in pursuing his ineffective assistance of counsel claim, see id. at 897 (9th Cir. 2003) (equitable tolling applies “during periods when a petitioner is prevented from filing because of deception, fraud, or error, as long as the petitioner acts with due diligence in discovering the deception, fraud, or error”), and that even by the most generous calculation, the motion to reopen was at least 25 days late.

PETITION FOR REVIEW DENIED.

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