Rafael Garcia-Gutierrez v. LORETTA E. LYNCH, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
RAFAEL GARCIA-GUTIERREZ,
Petitioner,
v.
LORETTA E. LYNCH, Attorney General,
Respondent.
No. 13-72820
Agency No. A077-335-780
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted March 15, 2016**
Before: GOODWIN, LEAVY, and CHRISTEN, Circuit Judges.
Rafael Garcia-Gutierrez, a native and citizen of Mexico, petitions for review
of the Board of Immigration Appeals’ (“BIA”) order denying his motion to reopen
and dismissing his appeal from an immigration judge’s (“IJ”) decision denying his
motion to reopen. We have jurisdiction under 8 U.S.C. § 1252. We review for
FILED
APR 01 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* 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).

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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 Garcia-Gutierrez’ motion to
reopen based on ineffective assistance of counsel, where Garcia-Gutierrez filed the
motion more than eight years after his final order of removal, see 8 C.F.R.
§ 1003.2(c)(2), and did not establish the due diligence required for equitable tolling
of the filing deadline, see Iturribarria v. INS, 321 F.3d 889, 897 (9th Cir. 2003)
(equitable tolling is available to a petitioner who is prevented from timely filing
motion to reopen due to deception, fraud or error, as long as petitioner exercises
due diligence in discovering such circumstances); Avagyan v. Holder, 646 F.3d
672, 679 (9th Cir. 2011) (due diligence requires petitioner to take reasonable steps
to investigate any suspected fraud or error, or if he is ignorant of such
circumstances, make reasonable efforts to pursue relief).
The record does not support Garcia-Gutierrez’ contention that the BIA failed
to accept as true the facts stated in his declaration in support of his motion to
reopen. See Avagyan, 646 F.3d at 678-79.
In light of this disposition, we do not reach Garcia-Gutierrez’ remaining
contentions.
PETITION FOR REVIEW DENIED.
13-72820 2

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