Edwin Perdomo v. -- 2 of 3 -- - 3 - INS, 339 F.3d 407, 413-14 6th Cir. 2003

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 03-2324
EDWIN PERDOMO,
Petitioner,
versus
JOHN ASHCROFT, Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration
Appeals. (A-74-294-472)
Submitted: September 29, 2004 Decided: October 26, 2004
Before NIEMEYER, MICHAEL, and MOTZ, Circuit Judges.
Petition denied by unpublished per curiam opinion.
Paul S. Haar, Pauline M. Schwartz, LAW OFFICES OF PAUL S. HAAR,
Washington, D.C., for Petitioner. Peter D. Keisler, Assistant
Attorney General, Donald E. Keener, Deputy Director, Greg D. Mack,
Senior Litigation Counsel, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., for Respondent.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).

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*While 8 U.S.C. §§ 1105a, 1252b were repealed by the Illegal
Immigration Reform and Immigrant Responsibility Act of 1996, Pub.
L. No. 104-128, 110 Stat. 3009 (IIRIRA), effective April 1, 1997,
because a final order of deportation was issued in this case before
the effective date of the IIRIRA, these pre-IIRIRA provisions of
the INA are applicable. See IIRIRA § 309(a), (c).
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PER CURIAM:
Edwin Perdomo, a native and citizen of El Salvador,
petitions for review of an order of the Board of Immigration
Appeals (Board) sustaining an appeal by the Department of Homeland
Security and vacating a decision of the immigration judge that
granted a motion to reopen a final order of deportation in absentia
and granted Perdomo’s request for adjustment of status. The Board
reinstated the 1996 in absentia order of deportation. We have
jurisdiction under 8 U.S.C. § 1105a(a) (1994),* and we deny the
petition for review.
We conclude that the Board did not abuse its discretion
in denying the untimely motion to reopen for rescission of the in
absentia order of deportation. The record reveals that Perdomo
received actual notice of the hearing and did not timely move to
reopen in accordance with 8 U.S.C. § 1252b(c)(3)(A) (1994). The
Board did not abuse its discretion in holding that, without
deciding whether the time limit set forth in § 1252(c)(3)(A) is
subject to equitable tolling, Perdomo did not establish the due
diligence necessary to invoke such an exception. See Scorteneau v.

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INS, 339 F.3d 407, 413-14 (6th Cir. 2003); Jobe v. INS, 238 F.3d
96, 100, 101 (1st Cir. 2001) (en banc).
Accordingly, we deny the petition for review. We
dispense with oral argument because the facts and legal contentions
are adequately presented in the materials before the court and
argument would not aid the decisional process.
PETITION DENIED

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