                                                                              FILED
                            NOT FOR PUBLICATION                                FEB 18 2014

                                                                          MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS



                             FOR THE NINTH CIRCUIT


RICARDO PEREZ-MORALES,                           No. 10-71901

              Petitioner,                        Agency No. A024-965-768

  v.
                                                 MEMORANDUM*
ERIC H. HOLDER, Jr., Attorney General,

              Respondent.


                     On Petition for Review of an Order of the
                         Board of Immigration Appeals

                            Submitted February 13, 2014**
                              San Francisco, California

Before: KOZINSKI, Chief Judge, and O’SCANNLAIN and MURGUIA, Circuit
Judges.

       Ricardo Perez-Morales appeals the BIA’s denial of his motion to reopen to

seek discretionary relief under former § 212(c) of the Immigration and Nationality




        *
             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).
Act. We review for abuse of discretion. Valeriano v.Gonzales, 474 F.3d 669, 672

(9th Cir. 2007).

      The deadline for filing a special motion to reopen to apply for discretionary

relief under former § 212(c) was April 26, 2005. 8 C.F.R. 1003.44(h). Perez-

Morales filed his motion in November 2009. Equitable tolling of a deadline to file

a motion to reopen will apply “where, despite all due diligence, [the party invoking

equitable tolling] is unable to obtain vital information bearing on the existence of

the claim.” Socop-Gonzalez v. INS, 272 F.3d 1176, 1193 (9th Cir. 2001) (en banc)

(alteration in original) (internal quotation marks omitted). We assume arguendo

that the Immigration Judge at Perez-Morales’s 1998 final removal hearing erred by

not informing Perez-Morales of the availability of relief under former § 212(c).

Perez-Morales is presumed to have had notice of the April 26, 2005, deadline

because it was subsequently enacted by the Attorney General and published in the

Federal Register. Luna v. Holder, 659 F.3d 753, 760 (9th Cir. 2011). And even if

Perez-Morales’s ignorance of the deadline could serve as a basis for equitable

tolling, Perez-Morales has no explanation for why, if he first learned about his

potential eligibility for § 212(c) relief when his current counsel first reviewed his

file in June 2008, he waited until November 2009 to file his motion.

      Additionally, a special motion to reopen to seek § 212(c) relief must

establish that the alien “[a]greed to plead guilty or nolo contendere to an offense
rendering the alien deportable or removable, pursuant to a plea agreement made

before April 1, 1997.” 8 C.F.R. § 1003.44(b)(2). Perez-Morales did not allege in

his motion to reopen that his 1994 drug possession conviction was the result of a

guilty plea pursuant to a plea agreement.

      Because Perez-Morales’s motion was untimely and did not establish his

eligibility for a § 212(c) waiver, we conclude there was no abuse of discretion.

      PETITION DENIED.
