DIEGO ARMANDO SEGUNDO V. HOLDER, No. 06-70398 (9th Cir. 2012)

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FILED NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS NOV 23 2012 MOLLY C. DWYER, CLERK U .S. C O U R T OF APPE ALS FOR THE NINTH CIRCUIT DIEGO ARMANDO SEGUNDO, Petitioner, No. 06-70398 Agency No. A078-371-019 v. MEMORANDUM * ERIC H. HOLDER, JR., Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Argued June 13, 2011; Resubmitted October 31, 2012 San Francisco, California Before: SCHROEDER, RIPPLE,** and GRABER, Circuit Judges. Diego Armando Segundo, a native and citizen of Mexico, has petitioned for review of the Board of Immigration Appeals ( BIA ) dismissal of his appeal from an immigration judge s denial of his application for cancellation of removal for failure to meet the ten-year continuous presence requirement. We previously * This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** The Honorable Kenneth F. Ripple, Senior United States Circuit Judge for the Seventh Circuit, sitting by designation. referred his petition to the court s mediation office, along with those of his copetitioners. Their cases in this court have been terminated, and we are asked to decide only Armando Segundo s petition. Petitioner seeks relief from the ten-year continuous presence requirement under the equitable-tolling doctrine due to the bad advice he received from prior counsel, and he argues that the BIA s failure to grant such relief violated his due process rights. As a result, he argues that the end date of his continuous presence should be equitably tolled, or extended, from the date on which he received his Notice to Appear to the date on which he retained competent counsel. It is clear that Petitioner s original counsel misadvised him to apply for relief when he had not yet met the ten-year period of continuous presence required for cancellation of removal. Equitable tolling, however, cannot be applied in cases such as this one, where the unfairness stems from the conduct of counsel, which is exterior to immigration procedures themselves. Hernandez-Mancilla v. Holder, 633 F.3d 1182, 1186 (9th Cir. 2011) (citing Lara-Torres v. Ashcroft, 383 F.3d 968, 973 (9th Cir. 2004), as amended by 404 F.3d 1105 (9th Cir. 2005)). We have also held that such conduct by counsel does not constitute a due process violation. Lara-Torres, 383 F.3d at 973. PETITION DENIED. 2