Miguel Angel Diaz 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NOT FOR PUBLICATION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
MIGUEL ANGEL DIAZ,
Petitioner,
v.
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
No. 08-72809
Agency No. A070-815-740
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted September 13, 2010**
Before: SILVERMAN, CALLAHAN, and N.R. SMITH, Circuit Judges.
Miguel Angel Diaz, a native and citizen of El Salvador, petitions for review
of the Board of Immigration Appeals’ (“BIA”) order summarily affirming an
immigration judge’s (“IJ”) decision denying his motion to reopen removal
proceedings. We have jurisdiction under 8 U.S.C. § 1252. We review for abuse of
FILED
SEP 28 2010
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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08-72809 2
discretion the denial of a motion to reopen, Mohammed v. Gonzales, 400 F.3d 785,
791-92 (9th Cir. 2005), and we deny the petition for review.
The agency did not abuse its discretion in denying Diaz’s motion to reopen
as untimely because it was filed over nine years after the BIA’s final order of
removal, see 8 U.S.C. § 1229a(c)(7)(C)(i) (motion to reopen must be filed within
90 days of final order of removal), and Diaz did not show he was entitled to
equitable tolling, see Iturribarria v. INS, 321 F.3d 889, 897 (9th Cir. 2003)
(deadline for filing motion to reopen can be equitably tolled “when a petitioner is
prevented from filing because of deception, fraud, or error, as long as the petitioner
acts with due diligence”).
Diaz’s contention that the BIA abused its discretion by summarily affirming
the IJ’s decision is foreclosed by Falcon Carriche v. Ashcroft, 350 F.3d 845, 855
(9th Cir. 2003) (“where we can reach the merits of the decision by the IJ or the
BIA, an additional review of the streamlining decision itself would be
superfluous”).
PETITION FOR REVIEW DENIED.

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