Santiago Torres-Hernandez v. Eric Holder, Jr.
Opinion
Opinion
MEMORANDUM
Petitioner, Santiago Torres-Hernandez, a native and citizen of Mexico, petitions for review of the Board of Immigration Appeals’ (BIA) denial óf his motion to reopen. In that motion, Torres-Hernandez argued that his case should be reopened due to the ineffective assistance of his two prior attorneys and because he offered new evidence in support of his application for cancellation of removal. We review for abuse of discretion the denial of a motion to reopen. Mohammed v. Gonzales, 400 F.3d 785, 791 (9th Cir.2005).
The BIA did not abuse its discretion in denying Torres-Hernandez’s motion as untimely. The motion to reopen was filed almost three years after the final order was issued and does not fall within any of the exceptions for timeliness. 8 C.F.R. § 1003.2 (c)(2)-(3). Equitable tolling of the time limit may apply in certain instances, including when an individual has been represented by ineffective counsel, Iturribarria v. INS, 321 F.3d 889, 897-98 (9th Cir.2003), but Torres-Hernandez has not raised the issue of equitable tolling to the BIA, and it is therefore unexhausted. See Taniguchi v. Schultz, 303 F.3d 950, 955 (9th Cir.2002).