VICTOR HUANTE MAGANA V. ERIC HOLDER, JR., No. 12-70416 (9th Cir. 2013)

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FILED NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS DEC 11 2013 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT VICTOR MANUEL HUANTE MAGANA, No. 12-70416 Agency No. A096-351-510 Petitioners, MEMORANDUM* v. ERIC H. HOLDER, Jr., Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted November 19, 2013** Before: CANBY, TROTT, and THOMAS, Circuit Judges. Victor Manuel Huante Magana, a native and citizen of Mexico, 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 * 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). jurisdiction under 8 U.S.C. § 1252. We review for abuse of discretion the denial of motions to reopen, and review de novo questions of law. Mohammed v. Gonzales, 400 F.3d 785, 791-92 (9th Cir. 2005). We deny the petition for review. The BIA did not abuse its discretion in denying Huante Magana s motion to reopen as untimely and number-barred where the successive motion was filed more than five years after his removal order became final, see 8 C.F.R. § 1003.2(c)(2), and he failed to demonstrate the due diligence required for equitable tolling of the filing deadline, see Avagyan v. Holder, 646 F.3d 672, 679 (9th Cir. 2011) (equitable tolling is available to a petitioner who is prevented from filing because of deception, fraud or error, and exercised due diligence in discovering such circumstances). Contrary to Huante Magana s contention, the BIA did not employ an incorrect standard of review. See id. at 679 (explaining that if petitioner is ignorant of counsel s shortcomings, whether petitioner made reasonable efforts to pursue relief is a consideration when assessing diligence). PETITION FOR REVIEW DENIED. 2 12-70416