Marco Antonio HERRERA-SANCHEZ, a.k.a. Marco Antonio Herrera, Petitioner, v. Eric H. HOLDER, Jr., Attorney General, Respondent, 346 F. App'x 279

MEMORANDUM Marco Antonio Herrera-Sanchez, citizen and native of Mexico, petitions for review of the Board of Immigration Appeals’ (BIA) order denying his motion to reopen. We have jurisdiction under 8 U.S.C. § 1252. We deny the petition for review. The BIA did not abuse its discretion when it denied Herrera-Sanchez’s motion to reopen and rejected his argument for equitable tolling. See Mohammed v. Gonzales, 400 F.3d 785, 791 (9th Cir.2005). First, the BIA correctly denied Herrera-Sanchez’s motion as untimely because it was filed almost twelve years after his final deportation order. See 8 U.S.C. § 1229a(c)(7).

Second, equitable tolling is unavailable to Herrera-Sanchez because he did not establish prejudice from the alleged ineffective assistance of counsel. See Iturribarria v. INS, 321 F.3d 889, 897 (9th Cir.2003). Herrera-Sanchez’s underlying claim for relief is not plausible because his claim for concurrent adjustment of status and an 8 U.S.C. § 1182(

c) waiver under Matter of Gabryelsky, 20 I. & N. Dec. 750 (BIA 1993) is speculative at best. See Lin v. Ashcroft, 377 F.3d 1014, 1027 (9th Cir.2004); see 8 C.F.R. § 1003.2(c)(1). PETITION FOR REVIEW DENIED. This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.