Case Information
*1 Before: KOZINSKI and BYBEE, Circuit Judges, and WALTER, Senior District Judge. [**]
1. Colon-Lorenzo contends that the BIA erred in denying as untimely his motion to reconsider its 1993 dismissal and to reopen proceedings. But the BIA did *2 not err. Citing Avagyan v. Holder , 646 F.3d 672, 679 (9th Cir. 2011), the BIA correctly found that Colon-Lorenzo’s assertions were insufficient to establish due diligence.
Colon-Lorenzo was ordered deported on February 18, 1993. After his attorney failed to timely appeal, Colon-Lorenzo filed an untimely pro se notice of appeal, which was dismissed on November 18, 1993. The BIA’s dismissal was sent directly to Colon-Lorenzo. From then until 2013, despite having all pertinent information at his disposal, he made no reasonable efforts to pursue relief. See Avagyan , 646 F.3d at 680 (stating that petitioner first had reason to suspect counsels’ deficient performance when the BIA denied her appeal). Nearly two decades later, on February 8, 2013, Colon-Lorenzo requested that the BIA reconsider its dismissal and reopen the proceedings.
The motion was clearly untimely, unless subject to equitable tolling. “[A] petitioner is entitled to equitable tolling of the deadline ‘during periods when a petitioner is prevented from filing because of a deception, fraud, or error, as long as petitioner acts with due diligence in discovering the deception, fraud or error.’” Avagyan , 646 F.3d at 679 (quoting Iturribarria v. INS , 321 F.3d 889, 897 (9th Cir. 2003)). This court has found that a lack of due diligence foreclosed a petitioner’s entitlement to equitable tolling where the petitioner became suspicious of fraud a *3 “few weeks” after entry of a removal order and yet failed to take any action for six months. Singh v. Gonzales , 491 F.3d 1090, 1096 (9th Cir. 2007). We explained that said “inaction contrast[ed] sharply with cases in which we have concluded that the petitioner acted with due diligence.” Id . (collecting cases). Colon-Lorenzo’s inaction, for nearly twenty years, during which time he also chose to illegally re- enter the United States, likewise forecloses the application of equitable tolling. The BIA’s decision was therefore not “arbitrary, irrational, or contrary to law.” Ontiveros–Lopez v. INS , 213 F.3d 1121, 1124 (9th Cir. 2000) (citation omitted).
2. Regardless of our decision above, Colon-Lorenzo is also subject to the DHS’s proper reinstatement of his February 18, 1993 deportation order. Pursuant to 8 U.S.C. § 1231(a)(5), “the prior order of removal is reinstated . . . and is not subject to being reopened or reviewed, the alien is not eligible . . . for any relief under this chapter, and the alien shall be removed . . . at any time after the reentry.” The record supports the DHS’s findings that Colon-Lorenzo (1) is an alien, subject to a previous order of deportation entered on February 18, 1993; (2) was removed, pursuant thereto, on January 31, 1998; and (3) illegally reentered the United States on or about February 1, 1998. See Garcia de Rincon v. Dep’t of Homeland Sec. , 539 F.3d 1133, 1137 (9th Cir. 2008) (citing Morales–Izquierdo v. Gonzales , 486 *4 F.3d 484, 495 (9th Cir. 2007) (en banc)). These findings are conclusive. 8 U.S.C. § 1252(b)(4)(B).
DENIED.
[*] This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.
[**] The Honorable Donald E. Walter, Senior United States District Judge for the Western District of Louisiana, sitting by designation.
