Guerra v. Gonzales

MEMORANDUM ** Marco A. Guerra, a native and citizen of Mexico, petitions for review of the Board of Immigration Appeals’ (“BIA”) order denying his motion to reopen deportation proceedings. We have jurisdiction pursuant to 8 U.S.C. § 1252 . We review the denial of a motion to reopen for abuse of discretion and we review due process claims de novo. See Iturribarria v. INS, *582 321 F.3d 889, 894 (9th Cir.2003). We deny the petition for review. The BIA did not abuse its discretion in denying as untimely Guerra’s motion to reopen based on ineffective assistance of counsel. Guerra had knowledge of the alleged ineffective assistance for more than five months before he filed his motion to reopen. See id. at 897-98 (holding that a petitioner must act with due diligence when pursuing an ineffective assistance of counsel claim to benefit from equitable tolling of deadlines). Guerra’s claim that the BIA violated his right to due process is unavailing because he cannot show prejudice. See Lata v. INS, 204 F.3d 1241, 1246 (9th Cir.2000). PETITION FOR REVIEW DENIED. This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.