Jose Manuel Perez Huerta 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NOT FOR PUBLICATION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
JOSE MANUEL PEREZ HUERTA,
Petitioner,
v.
ERIC H. HOLDER Jr., Attorney General,
Respondent.
No. 07-73411
Agency No. A095-179-270
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted April 5, 2010**
Before: RYMER, McKEOWN, and PAEZ, Circuit Judges.
Jose Manuel Perez Huerta, 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
APR 12 2010
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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07-73411 2
8 U.S.C. § 1252. We review for abuse of discretion the BIA’s denial of a motion
to reopen and review de novo constitutional claims, including claims of ineffective
assistance of counsel. Mohammed v. Gonzales, 400 F.3d 785, 791-92 (9th Cir.
2005). We deny in part and dismiss in part the petition for review.
The BIA did not abuse its discretion in denying Perez Huerta’s motion to
reopen as untimely because he filed his motion to reopen nine months after the
BIA’s July 17, 2006, order, 8 C.F.R. § 1003.2(c)(2), and failed to establish grounds
for equitable tolling, see Iturribarria v. INS, 321 F.3d 889, 897-98 (9th Cir. 2003).
We lack jurisdiction to review Perez Huerta’s claim that the BIA should
have granted his motion to reopen to apply for adjustment of status under Matter of
Velarde-Pacheco, 23 I. & N. Dec. 253 (BIA 2002) (en banc), because he failed to
exhaust this claim before the agency. See Barron v. Ashcroft, 358 F.3d 674, 678
(9th Cir. 2004).
PETITION FOR REVIEW DENIED in part; DISMISSED in part.

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