                                                                           FILED
                            NOT FOR PUBLICATION                             NOV 23 2012

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



DIEGO ARMANDO SEGUNDO,                           No. 06-70398

              Petitioner,                        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 co-

petitioners. 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.


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