PALACIOS GONZLAEZ v. GARLAND (2021)

United States Court of Appeals, Ninth Circuit.2021-03-18No. No. 19-71277

Summary · law.co

Holding. The court denied the petition for review, holding that the Board of Immigration Appeals did not abuse its discretion in denying the motion to reopen as untimely, in denying equitable tolling for ineffective assistance of counsel due to lack of due diligence, and in rejecting the jurisdictional challenge.

Wilmer Augusto Palacios-Gonzlaez, a Guatemalan citizen, sought review of the Board of Immigration Appeals' refusal to reopen and terminate his removal proceedings. The petitioner filed his motion to reopen more than a decade after his removal order became final and did not demonstrate changed conditions in Guatemala that would qualify for an exception to the filing deadline. Additionally, he claimed ineffective assistance of counsel but failed to show the diligence required to obtain equitable tolling of the deadline. The petitioner also argued the immigration court lacked jurisdiction, but this argument was foreclosed by prior precedent establishing that technical defects in the notice of removal proceedings do not strip the court of authority.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Timeliness of motion to reopen under regulatory deadline
Changed country conditions as exception to filing deadline
Equitable tolling for ineffective assistance of counsel
Immigration court jurisdiction despite defects in notice of removal

Procedural posture

The petitioner sought review of the Board of Immigration Appeals' order denying his motion to reopen and terminate removal proceedings in the United States Court of Appeals.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

MEMORANDUM **

Wilmer Augusto Palacios-Gonzlaez

(“petitioner”), a native and citizen of Guatemala, petitions for review of the Board of Immigration Appeals’ (“BIA”) order denying his motion to reopen and terminate his removal proceedings. We have jurisdiction under 8 U.S.C. § 1252. We review for abuse of discretion the denial of a motion to reopen, Najmabadi v. Holder, 597 F.3d 983, 986 (9th Cir. 2010), and the denial of a motion to terminate, Dominguez v. Barr, 975 F.3d 725, 734 (9th Cir. 2020). We deny the petition for review.

The BIA did not abuse its discretion in denying petitioners motion to reopen as untimely, where it was filed more than 10 years after the order of removal became final, see 8 C.F.R. § 1003.2(c)(2), and petitioner has not established changed country conditions in Guatemala to qualify for the regulatory exception to the filing deadline, see 8 C.F.R. § 1003.2(c)(3)(ii); Toufighi v. Mukasey, 538 F.3d 988, 996 (9th Cir. 2008) (requiring movant to produce material evidence with motion to reopen that conditions in country of nationality had changed).

The BIA did not abuse its discretion in denying petitioners untimely motion to reopen based on ineffective assistance of counsel where he failed to establish that he acted with the due diligence required for equitable tolling. See 8 U.S.C. § 1229a(c)(7)(C)(i); Singh v. Holder, 658 F.3d 879, 884 (9th Cir. 2011) (“To qualify for equitable tolling on account of ineffective assistance of counsel, a petitioner must demonstrate ․ due diligence in discovering counsels fraud or error.․”); Avagyan v. Holder, 646 F.3d 672, 679 (9th Cir. 2011) (listing factors relevant to the diligence inquiry).

The BIA did not abuse its discretion in denying petitioners motion to reopen and terminate his proceedings where petitioners contention that the immigration court lacked jurisdiction over his proceedings is foreclosed by Aguilar Fermin v. Barr, 958 F.3d 887, 895 (9th Cir. 2020) (“the lack of time, date, and place in the NTA sent to [petitioner] did not deprive the immigration court of jurisdiction over her case”).

PETITION FOR REVIEW DENIED.

FOOTNOTES

. Although petitioners name appears as Wilmer Augusto Palacios-Gonzlaez in the orders issued by the agency, the petition for review and opening brief filed in this court show his name as Wilmer Augusto Palacios-Gonzalez.