Rudy A. Garcia Pinto 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 concludes this case is suitable for decision**
without oral argument. See Fed. R. App. P. 34(a)(2).
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
RUDY A. GARCIA PINTO,
Petitioner,
v.
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
No. 12-72418
Agency No. A073-934-442
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted September 24, 2013**
Before: RAWLINSON, N.R. SMITH, and CHRISTEN, Circuit Judges.
Rudy A. Garcia Pinto, a native and citizen of Guatemala, petitions for
review of the Board of Immigration Appeals’ (“BIA”) order denying his motion to
reopen removal proceedings. Our jurisdiction is governed by 8 U.S.C. § 1252. We
review for abuse of discretion the denial of a motion to reopen, and review de novo
FILED
OCT 01 2013
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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12-72418 2
constitutional claims. Mohammed v. Gonzales, 400 F.3d 785, 791-92 (9th Cir.
2005). We deny in part and dismiss in part the petition for review.
In his opening brief, Garcia Pinto fails to raise, and therefore has waived,
any challenge to the BIA’s dispositive determination that he failed to demonstrate
the due diligence required for equitable tolling of the filing deadline for his
untimely motion to reopen. See Rizk v. Holder, 629 F.3d 1083, 1091 n.3 (9th Cir.
2011) (issues not raised in a petitioner’s opening brief are deemed waived).
Garcia Pinto’s contention that the BIA issued a streamlined decision in
violation of due process is belied by the record.
We lack jurisdiction to consider Garcia Pinto’s contention that he received
ineffective assistance of counsel from the attorney who prepared his motion to
reopen because Garcia Pinto failed to raise this contention before the BIA. See
Barron v. Ashcroft, 358 F.3d 674, 678 (9th Cir. 2004); see also Puga v. Chertoff,
488 F.3d 812, 815-816 (9th Cir. 2007) (indicating that ineffective assistance of
counsel claims must be raised in a motion to reopen before the BIA).
In light of our disposition, we do not reach Garcia Pinto’s contentions
concerning his prima facie eligibility for adjustment of status, asylum, and related
relief.
PETITION FOR REVIEW DENIED in part; DISMISSED in part.

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