EDGAR ESCOBAR-ALARCON V. ERIC HOLDER, JR., No. 12-72820 (9th Cir. 2015)

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FILED NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS JAN 30 2015 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT EDGAR MORRIS ESCOBARALARCON, No. 12-72820 Agency No. A070-097-323 Petitioner, MEMORANDUM* v. ERIC H. HOLDER, Jr., Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted January 21, 2015** Before: CANBY, GOULD, and N.R. SMITH, Circuit Judges. Edgar Morris Escobar-Alarcon, a native and citizen of El Salvador, petitions for review of the Board of Immigration Appeals’ (“BIA”) order denying his motion to reopen deportation proceedings based on ineffective assistance of counsel. We have jurisdiction under 8 U.S.C. § 1252. We review for abuse of * 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). discretion the denial of a motion to reopen. Mohammed v. Gonzales, 400 F.3d 785, 791 (9th Cir. 2005). We deny the petition for review. The BIA did not abuse its discretion in denying Escobar-Alarcon’s motion to reopen as untimely, where he filed the motion more than four years after his deportation order became final, see 8 C.F.R. § 1003.2(c)(2) (a motion to reopen must be filed within 90 days of a final order), and failed to establish the due diligence required to warrant equitable tolling of the motions deadline, see Avagyan v. Holder, 646 F.3d 672, 679 (9th Cir. 2011) (equitable tolling is available to a petitioner who is prevented from timely filing a motion to reopen due to deception, fraud or error, as long as petitioner exercises due diligence in discovering such circumstances). Because the timeliness determination is dispositive, we do not reach Escobar-Alarcon’s remaining contentions. This dismissal is without prejudice to petitioner’s seeking prosecutorial discretion or deferred action from the Department of Homeland Security. See Reno v. American-Arab Anti-Discrimination Committee (AADC), 525 U.S. 471, 483-85 (1999) (stating that prosecutorial discretion by the agency can be granted at any stage, including after the conclusion of judicial review). PETITION FOR REVIEW DENIED. 12-72820

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