Opinion
No. 07-73333.
September 14, 2009. Filed October 2, 2009.
The panel unanimously finds this case suitable for decision without oral argument. See Fed.R.App.P. 34(a)(2).
Murray D. Hilts, Esquire, Law Offices of Murray Hilts, San Diego, CA, for Petitioner.
On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A034-033-748.
Before: SILVERMAN, RAWLINSON, and CLIFTON, Circuit Judges.
MEMORANDUM
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
Marco Antonio Herrera-Sanchez, citizen and native of Mexico, petitions for review of the Board of Immigration Appeals' (BIA) order denying his motion to reopen. We have jurisdiction under 8 U.S.C. § 1252. We deny the petition for review.
The BIA did not abuse its discretion when it denied Herrera-Sanchez's motion to reopen and rejected his argument for equitable tolling. See Mohammed v. Gonzales, 400 F.3d 785, 791 (9th Cir. 2005). First, the BIA correctly denied Herrera-Sanchez's motion as untimely because it was filed almost twelve years after his final deportation order. See 8 U.S.C. § 1229a(c)(7). Second, equitable tolling is unavailable to Herrera-Sanchez because he did not establish prejudice from the alleged ineffective assistance of counsel. See Iturribarria v. INS, 321 F.3d 889, 897 (9th Cir. 2003). Herrera-Sanchez's underlying claim for relief is not plausible because his claim for concurrent adjustment of status and an 8 U.S.C. § 1182(c) waiver under Matter of Gabryelsky, 20 I. N. Dec. 750 (BIA 1993) is speculative at best. See Lin v. Ashcroft, 377 F.3d 1014, 1027 (9th Cir. 2004); see 8 C.F.R. § 1003.2(c)(1).
PETITION FOR REVIEW DENIED.