Opinion
Nos. 05-73866, 05-75180.
The panel unanimously finds this case suitable for decision without oral argument. See Fed.R.App.P. 34(a)(2).
Filed February 27, 2007.
Albert M. Sterwerf, Esq., Irvine, CA, for Petitioner.
CAC-District Counsel, Esq., Office of the District Counsel Department of Homeland Security, Los Angeles, CA, Ronald E. Lefevre, Chief Counsel, Office of the District Counsel Department of Homeland Security, San Francisco, CA, Virginia Lum, DOJ — U.S. Department of Justice Civil Div./Office of Immigration Lit., Charles W. Scarborough, Esq., DOJ — U.S. Department of Justice Civil Division/Appellate Staff, Washington, DC, for Respondent.
On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A75-524-521.
Before: BEEZER, FERNANDEZ and McKEOWN, Circuit Judges.
MEMORANDUM
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir. R. 36-3.
Hamoyoun Kamkar, a native and citizen of Iran, petitions for review of the Board of Immigration Appeals' ("BIA") order denying his motion to reopen removal proceedings. To the extent we have jurisdiction, it is conferred by 8 U.S.C. § 1252. We review the denial of a motion to reopen for abuse of discretion. See Iturribarria v. INS, 321 F.3d 889, 894 (9th Cir. 2003). We dismiss in part and deny in part the petition for review.
We lack jurisdiction to consider the petition for review in No. 05-73866, because it was not timely as to the BIA's December 19, 2002 decision. See Martinez-Serrano v. INS, 94 F.3d 1256, 1258 (9th Cir. 1996).
The BIA did not abuse its discretion in denying Kamkar's motion to reopen as untimely. Kamkar filed the motion more than two years after the BIA's final order, see 8 C.F.R. § 1003.2(c)(2) (requiring that motions to reopen be filed no later than 90 days after the final administrative decision), and Kamkar did not provide evidence that he acted with due diligence in pursuing his ineffective assistance of counsel claim, see Iturribarria, 321 F.3d at 897 (holding that equitable tolling applies "during periods when a petitioner is prevented from filing because of deception, fraud, or error, as long as the petitioner acts with due diligence in discovering the deception, fraud, or error"). PETITION FOR REVIEW DISMISSED. (No. 05-73866) PETITION FOR REVIEW DENIED. (No. 05-75180)