Frederic Mazariegos Santos v. Eric Holder, Jr.

MEMORANDUM

Frederic Mazariegos Santos, a native and citizen of Guatemala, petitions for review of the Board of Immigration Appeals’ (“BIA”) order denying his motion to reopen based on ineffective assistance of counsel. We have jurisdiction under 8 U.S.C. § 1252 . We review for abuse of discretion the denial of a motion to reopen, Iturribarria v. INS, 321 F.3d 889, 894 (9th Cir.2003), and we deny the petition for review.

The BIA did not abuse its discretion in denying Mazariegos Santos’s motion to reopen as untimely where he filed the motion more than seven years after his final order of removal, see 8 C.F.R. § 1003.2 (c)(2) (motion to reopen must be filed within 90 days of final order), and failed to show the due diligence required to obtain equitable tolling of the filing deadline, see Iturribarria, 321 F.3d at 897 (equitable tolling is available where petitioner demonstrates due diligence in discovering the deception, fraud, or error that prevented timely filing).

Because the BIA’s untimeliness determination is dispositive, we do not reach Ma-zariegos Santos’s contentions concerning the departure bar and the merits of his ineffective assistance and due process…