Mosqueda v. Gonzales

MEMORANDUM ** Alberto Mosqueda, a native and citizen of Mexico, petitions for review of the Board of Immigration Appeals’ (“BIA”) order denying his motion to reopen removal proceedings due to ineffective assistance of counsel. We have jurisdiction under 8 U.S.C. § 1252 . We review the BIA’s denial of a motion to reopen for abuse of discretion, Iturribarria v. INS, 321 F.3d 889, 894 (9th Cir.2003), and we deny the petition for review. Mosqueda does not explain why he waited nearly three years to file a motion to reopen based on the ineffective assistance of his former counsel, despite hiring new counsel in time to file a petition for review of the BIA’s underlying decision. See 8 U.S.C. § 1229a(c)(7)(C)(i) (generally requiring that motions to reopen be filed within 90 days of the entry of a final administrative order of removal). Mosqueda thus failed to show grounds for equitable tolling. Iturribarria, 321 F.3d at 897 (the limitations period for filing a motion to reopen may be tolled “during periods when a petitioner is prevented from filing because of deception, fraud, or error, as long as the petitioner acts with due diligence in discovering the deception, fraud or error”). Because the untimeliness of Mosqueda’s motion to reopen is dispositive, we do not consider Mosqueda’s due process claim. PETITION FOR REVIEW DENIED. This disposition is not appropriate for publication and is not precedent except as provided by 9 th Cir. R. 36-3.