Erik Merida-Mazariegos 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).
RB/Research
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ERIK MERIDA-MAZARIEGOS,
Petitioner,
v.
ERIC H. HOLDER Jr., Attorney General,
Respondent.
No. 07-71913
Agency No. A072-117-966
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.
Erik Merida-Mazariegos, a native and citizen of Guatemala, 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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8 U.S.C. § 1252. We review for abuse of discretion the denial of a motion to
reopen. Mohammed v. Gonzales, 400 F.3d 785, 791 (9th Cir. 2005). We deny in
part and dismiss in part the petition for review.
The BIA did not abuse its discretion in denying Merida-Mazariegos’ motion
to reopen as untimely because the motion was filed more than nine years after the
BIA’s November 14, 1997, order dismissing his appeal. See 8 C.F.R.
§ 1003.2(c)(2). The BIA acted within its discretion in determining that the
evidence submitted with the motion to reopen failed to establish the due diligence
required to warrant tolling of the motions deadline. See Iturribarria v. INS, 321
F.3d 889, 897 (9th Cir. 2003) (equitable tolling is available to a petitioner who is
prevented from filing due to deception, fraud or error, and exercises due diligence
in discovering such circumstances).
Contrary to Merida-Mazariegos’ contention, the BIA did not engage in an
impermissible credibility determination when assessing the evidence submitted
with his motion to reopen, because his testimony before the immigration judge
contradicted his mother’s affidavit regarding his entry date to the United States.
See Bhasin v. Gonzales, 423 F.3d 977, 987 (9th Cir. 2005) (facts presented in
affidavits must be accepted as true unless inherently unbelievable).

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We lack jurisdiction to consider Merida-Mazariegos’ claim regarding
voluntary departure because he failed to exhaust it before the BIA. See Barron v.
Ashcroft, 358 F.3d 674, 678 (9th Cir. 2004).
Merida-Mazariegos’ pending motion is denied.
PETITION FOR REVIEW DENIED in part; DISMISSED in part.

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