Dariush Farshidian 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.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DARIUSH FARSHIDIAN,
Petitioner,
v.
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
No. 05-74472
Agency No. A027-554-393
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted March 2, 2010
Pasadena, California
Before: KOZINSKI, Chief Judge, W. FLETCHER, Circuit Judge, and
GETTLEMAN, Senior District Judge.**
Dariush Farshidian, a native and citizen of Iran, petitions for review of the
Board of Immigration Appeals’ (“BIA”) order affirming the denial of his motion to
reopen. Farshidian ultimately seeks relief under the Convention Against Torture
(“CAT”). We have jurisdiction pursuant to 8 U.S.C. § 1252. Reviewing for abuse
FILED
APR 09 2010
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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of discretion the denial of a motion to reopen, Bhasin v. Gonzales, 423 F.3d 977,
983 (9th Cir. 2005), we deny the petition for review.
Because Farshidian’s final order of removal was entered on May 22, 1997,
he was eligible to apply for relief under CAT within the 90-day window that ended
on June 21, 1999. Farshidian, however, did not file his motion to reopen until
February 3, 2000. The record established that Farshidian was housed at the Kern
County Jail during the 90-day filing window and lacked access to a law library
where he might have learned about his eligibility for relief under CAT. On August
2, 1999, Farshidian was transferred to the San Pedro Detention Facility (“San
Pedro”) where he had intermittent access to that facility’s law library. Farshidian
claims that, despite his diligence, he did not find any information about CAT or the
90-day filing window in the San Pedro law library, but learned about the
availability of CAT relief only after receiving a response, on December 10, 1999,
to a letter he sent to the United Nations High Commissioner for Refugees
(“UNHCR”). The record is silent as to when Farshidian sent his letter.
The BIA found that although equitable tolling was available to Farshidian as
a matter of law, the record did not support application of the doctrine to his case.
See Socop-Gonzalez v. INS, 272 F.3d 1176, 1193 (9th Cir. 2001)(en
banc)(equitable tolling is available in an immigration proceeding where “despite all

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due diligence [the party invoking equitable tolling] is unable to obtain vital
information bearing on the existence of the claim” because of “circumstances
beyond the party’s control.”(internal quotation and citation omitted)). Notably,
the BIA found that Farshidian failed to establish the factual basis supporting the
assertion that his ignorance of the limitations period was caused by circumstances
beyond his control after he was transferred to San Pedro and had access to that
facility’s law library. On the subject of his diligence, the only facts Farshidian
asserted in the record were that the San Pedro library had only one I.N.S. law book,
that library resources were limited due to heavy demand, that his efforts to get
information from an I.N.S. officer were unavailing, and that he ultimately learned
about CAT after writing a letter to the UNHCR at the end of 1999.
The BIA acted within its discretion in declining to equitably toll the 90-day
window in which petitioner had to file his motion to reopen to seek relief under
CAT because the record does not establish that Farshidian exercised the due
diligence required to warrant tolling of the filing period beyond the date of his
return to San Pedro. Moreover, Farshidian, who was released from custody on
May 4, 2001 after posting bond, had approximately four years from the filing of
his first motion to reopen until the BIA’s final denial of his motion to reconsider to

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supplement the record by producing evidence that the San Pedro library lacked
information on CAT and the 90-day filing window, yet he made no effort to do so.
The BIA, therefore, did not abuse its discretion in denying as time-barred
Farshidian’s second motion to reopen before the IJ. See 8 C.F.R. § 1003.23(b)(1),
(3).
PETITION FOR REVIEW DENIED.

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