Flavio Escobedo Gomez 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).
JTK/Research
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
FLAVIO ESCOBEDO GOMEZ,
Petitioner,
v.
ERIC H. HOLDER Jr., Attorney General,
Respondent.
No. 07-73368
Agency No. A079-264-217
MEMORANDUM *
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted February 16, 2010**
Before: FERNANDEZ, GOULD, and M. SMITH, Circuit Judges.
Flavio Escobedo Gomez, 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. We have jurisdiction under 8 U.S.C.
FILED
FEB 26 2010
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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JTK/Research 07-73368 2
§ 1252. We review for abuse of discretion the denial of a motion to reopen,
Iturribarria v. INS, 321 F.3d 889, 894 (9th Cir. 2003), and we review de novo due
process claims, Ram v. INS, 243 F.3d 510, 516 (9th Cir. 2001). We deny the
petition for review.
The BIA did not abuse its discretion in denying Escobedo Gomez’s second
motion to reopen as untimely and numerically barred because it was filed over a
year after the BIA’s August 2, 2005, final order, see 8 C.F.R. § 1003.2(c)(2), and
equitable tolling is unavailable to Escobedo Gomez where he did not establish
prejudice from the alleged ineffective assistance of counsel, see Iturribarria, 321
F.3d at 897, 899; see also Lara Torres v. Ashcroft, 383 F.3d 968, 973 (9th Cir.
2004), amended by 404 F.3d 1105 (9th Cir. 2005) (order) (counsel’s “unfortunate
immigration-law advice” was not ineffective assistance because it did not “pertain
to the actual substance of the hearing” or “call the hearing’s fairness into
question”).
PETITION FOR REVIEW DENIED.

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