Serafin Tinoco-Garibay 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).
RA/Research 07-70185
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
SERAFIN TINOCO-GARIBAY,
Petitioner,
v.
ERIC H. HOLDER Jr., Attorney General,
Respondent.
No. 07-70185
Agency No. A044-544-620
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.
Serafin Tinoco-Garibay, a native and citizen of Mexico, petitions for review
of the Board of Immigration Appeals’ (“BIA”) order denying his motion to reopen
based on ineffective assistance of counsel. Our jurisdiction is governed by
FILED
NOV 30 2009
MOLLY C. DWYER, CLERK
U .S. C O U R T O F AP PE ALS

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RA/Research 07-70185 2
8 U.S.C. § 1252. We review the denial of a motion to reopen for abuse of
discretion. Iturribarria v. INS, 321 F.3d 889, 894 (9th Cir. 2003). We deny in part
and dismiss in part the petition for review.
The BIA did not abuse its discretion in denying Tinoco-Garibay’s motion to
reopen as untimely because it was filed more than two years after the BIA’s final
order, see 8 C.F.R. § 1003.2(c)(1), and he failed to present evidence that he
exercised diligence in discovering his prior attorney’s errors, see id. at 897
(equitable tolling is available to a petitioner who establishes deception, fraud, or
error, and exercised due diligence in discovering such circumstances).
We lack jurisdiction to consider Tinoco-Garibay’s contentions regarding the
BIA’s March 23, 2004 order, because this petition for review is not timely as to
that order. See Singh v. INS, 315 F.3d 1186, 1188 (9th Cir. 2003).
PETITION FOR REVIEW DENIED in part; DISMISSED in part.

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