Marcos Pineda-Oreana v. ERIC H. HOLDER Jr., Attorney General

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
The panel unanimously finds this case suitable for decision without**
oral argument. See Fed. R. App. P. 34(a)(2).
RB/Research
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARCOS PINEDA-OREANA,
Petitioner,
v.
ERIC H. HOLDER Jr., Attorney General,
Respondent.
No. 07-73334
Agency No. A028-572-929
MEMORANDUM *
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted November 17, 2009**
Before: ALARCÓN, TROTT, and TASHIMA, Circuit Judges.
Marcos Pineda-Oreana, a native and citizen of El Salvador, petitions for
review of the Board of Immigration Appeals’ (“BIA”) order denying his motion to
reopen deportation proceedings based on ineffective assistance of counsel. We
FILED
NOV 30 2009
MOLLY C. DWYER, CLERK
U .S. C O U R T O F AP PE ALS

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RB/Research 07-73334 2
have jurisdiction pursuant to 8 U.S.C. § 1252. We review for abuse of discretion
the denial of a motion to reopen. Mohammed v. Gonzales, 400 F.3d 785, 791 (9th
Cir. 2005). We deny the petition for review.
The BIA did not abuse its discretion in denying Pineda-Oreana’s motion to
reopen as untimely because it was filed more than 16 years after the BIA’s April
23, 1990, order dismissing his appeal, and more than ten years after the September
30, 1996, statutory motions deadline. See 8 C.F.R. § 1003.2(c)(2) (motion to
reopen deportation proceedings must be filed within 90 days of the final
administrative order, or September 30, 1996, whichever is later). The BIA acted
within its discretion in concluding that the evidence submitted with the motion to
reopen failed to establish the due diligence required to warrant tolling of the
motions deadline. See Iturribarria v. INS, 321 F.3d 889, 897 (9th Cir. 2003)
(equitable tolling is available to a petitioner who is prevented from filing due to
deception, fraud or error, and exercises due diligence in discovering such
circumstances).
PETITION FOR REVIEW DENIED.

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