Jorge Flores Cruz 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NOT FOR PUBLICATION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
JORGE FLORES CRUZ,
Petitioner,
v.
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
No. 12-70884
Agency No. A075-480-748
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted August 14, 2013**
Before: SCHROEDER, GRABER, and PAEZ, Circuit Judges.
Jorge Flores Cruz, a native and citizen of Mexico, petitions for review of the
Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an
immigration judge’s denial of his motion to reopen removal proceedings. We have
jurisdiction under 8 U.S.C. § 1252. We review for abuse of discretion the denial of
FILED
AUG 16 2013
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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12-70884 2
a motion to reopen, Avagyan v. Holder, 646 F.3d 672, 674 (9th Cir. 2011), and we
deny the petition for review.
The agency did not abuse its discretion in denying Flores Cruz’s motion to
reopen as untimely where the motion was filed nearly twelve years after his
removal order became final, see 8 C.F.R. § 1003.2(c)(2), and Flores Cruz failed to
show the due diligence required for equitable tolling of the filing deadline, see
Avagyan, 646 F.3d at 679 (equitable tolling is available to a petitioner who is
prevented from filing because of deception, fraud or error, and exercised due
diligence in discovering such circumstances). Contrary to Flores Cruz’s
contention, the BIA did not create a per se rule when finding he failed to show the
requisite due diligence. See id. (assessing the exercise of due diligence includes
“ascertain[ing] . . . if petitioner is ignorant of counsel’s shortcomings, whether
petitioner made reasonable efforts to pursue relief”).
In light of our determination, we do not reach Flores Cruz’s contention
regarding the absence of a complete record from the 1998 proceedings.
PETITION FOR REVIEW DENIED.

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