Miranda Pena v. Mukasey

MEMORANDUM **

In these consolidated petitions for review, Carlos R. Miranda Pena, a native and citizen of Nicaragua, petitions for review of the Board of Immigration Appeals’ (“BIA”) orders dismissing his appeal from an immigration judge’s deportation order (No. 06-73336), and denying his motion to reopen (No. 07-71065). We review for abuse of discretion the denial of a motion to reopen. Singh v. Gonzales, 416 F.3d 1006, 1009 (9th Cir.2005). We dismiss the petition for review in No. 06-73336 and deny the petition for review in No. 07-71065.

We lack jurisdiction over the untimely petition for review in No. 06-73336. See 8 U.S.C. § 1105a(a)(l) (1994); Singh v. Gonzales, 499 F.3d 969, 979 (9th Cir.2007) (petitioner’s ineffective assistance of counsel claim “cannot be construed as seeking judicial review of his final order of removal.”).

The BIA did not abuse its discretion in concluding that Miranda Pena was not entitled to equitable tolling where Miranda Pena’s motion to reopen was filed nearly twelve years after the BIA’s prior order and Miranda Pena did not demonstrate that he exercised due diligence in discovering former counsel’s alleged errors. See Iturribarria v. INS, 321…