Ysalas Patino-Ortiz v. Eric Holder, Jr.

MEMORANDUM

Ysaias Patino Ortiz petitions for review of the decision of the Board of Immigration Appeals (BIA) to dismiss his appeal from the denial of his third motion to reopen. We deny the petition because Patino’s third motion is time-barred.

1. Patino’s departure from the United States did not deprive the BIA of jurisdiction under 8 C.F.R. § 1008.23 (b) because the regulation “applies only to a person who departs the United States while he or she ‘is the subject of removal ... proceedings.’ ” Lin v. Gonzales, 473 F.3d 979, 982 (9th Cir.2007) (quoting 8 C.F.R. § 1003.23 (b)(1)). Patino at no point departed the country while he was the subject of removal proceedings, and “the physical removal of a petitioner by the United States does not preclude the petitioner from pursuing a motion to reopen.” Coyt v. Holder, 593 F.3d 902, 907 (9th Cir.2010).

2. Patino’s motion is time-barred. See 8 U.S.C. § 1229a(e)(7)(C)(I). Any equitable tolling available from his claim of ineffective assistance of counsel would run only from January 2008, when Patino’s then-counsel Sled the first motion to reopen. It would not apply to the six years between 2001, when Patino was removed, and 2007, when…