Victor Horta Garcia v. Eric Holder, Jr., No. 09-71017 (9th Cir. 2011)

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FILED MAR 29 2011 NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U .S. C O U R T OF APPE ALS FOR THE NINTH CIRCUIT VICTOR HUGO HORTA GARCIA, Petitioner, No. 09-71017 Agency No. A070-962-853 v. MEMORANDUM * ERIC H. HOLDER, Jr., Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted March 8, 2011 ** Before: FARRIS, O SCANNLAIN, and BYBEE, Circuit Judges. Victor Hugo Horta Garcia, a native and citizen of Guatemala, petitions for review of the Board of Immigration Appeals ( BIA ) order denying his motion to reopen removal proceedings based on ineffective assistance of counsel. We have jurisdiction under 8 U.S.C. § 1252, and we deny the petition for review. * This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). In his opening brief, Horta Garcia fails to address, and therefore has waived any challenge to, the BIA s dispositive determination that he failed to establish due diligence to warrant equitable tolling of the filing deadline for his untimely motion to reopen. See Martinez-Serrano v. INS, 94 F.3d 1256, 1259-60 (9th Cir. 1996) (issues not specifically raised and argued in a party s opening brief are waived). Horta Garcia s remaining contentions are unpersuasive. PETITION FOR REVIEW DENIED. 2 09-71017

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