Caballero

MEMORANDUM ***

Manuel Caballero, a native and citizen of Peru, petitions for review of an order from the Board of Immigration Appeals (“BIA”) denying his motion to reopen proceedings. We have jurisdiction, 8 U.S.C. § 1105a(a)(2), 1 review for abuse of discretion, Sharma v. INS, 89 F.3d 545, 547 (9th Cir.1996), and deny the petition. The parties are familiar with the facts and, therefore, we only discuss those relevant to our analysis.

Following proceedings before an Immigration Judge at which Caballero was represented by counsel, Caballero was ruled ineligible for asylum or withholding of deportation. BIA dismissed Caballero’s appeal on April 10, 2000. Caballero did not seek review. On August 14, 2001, over sixteen (16) months after BIA issued its decision, Caballero, through counsel, moved to re-open proceedings. BIA denied Caballero’s motion because it was untimely filed. See 8 C.F.R. § 3.2 (c)(2) (2001). Caballero retained new counsel, and seeks review of BIA’s order. He argues that BIA’s decision should be reversed because his previous lawyer failed to timely file the motion to re-open. Caballero contends that ineffective assistance of counsel equitably tolls the 90 day time…