ESCALANTE RECINOS v. WILKINSON (2021)

United States Court of Appeals, Ninth Circuit.2021-01-28No. No. 19-70907

Summary · law.co

Holding. The petition for review was denied because the Board of Immigration Appeals did not abuse its discretion in rejecting Escalante-Recinos's late motion to reopen, as she failed to show the diligence necessary to qualify for equitable tolling of the filing deadline.

Adriana Escalante-Recinos, a Salvadoran national, sought court review of an immigration board's refusal to reopen her deportation case. She claimed her immigration attorney had provided ineffective assistance. The court examined whether she qualified for equitable tolling—a legal doctrine that can extend deadlines when someone has been wronged—and found she failed to demonstrate the required diligence in discovering her lawyer's alleged errors or misconduct. Because she did not meet this threshold requirement, the court did not need to address her other arguments about whether she suffered harm from the poor legal representation or how certain precedent applied.

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

Key issues

Whether a motion to reopen deportation proceedings filed after the deadline qualifies for equitable tolling based on ineffective assistance of counsel
Whether a petitioner demonstrated due diligence in discovering counsel's errors or misconduct

Procedural posture

Escalante-Recinos petitioned for review of a Board of Immigration Appeals order denying her motion to reopen her deportation proceedings.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

MEMORANDUM **

Adriana Escalante-Recinos, a native and citizen of El Salvador, petitions for review of the Board of Immigration Appeals’ (“BIA”) order denying her motion to reopen deportation proceedings based on ineffective assistance of counsel. We have jurisdiction under 8 U.S.C. § 1252. We review for abuse of discretion the denial of a motion to reopen. Mohammed v. Gonzales, 400 F.3d 785, 791 (9th Cir. 2005). We deny the petition for review.

The BIA did not abuse its discretion in denying Escalante-Recinoss untimely motion to reopen for failure to demonstrate she 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).

In light of this disposition, we do not address Escalante-Recinoss contentions regarding prejudice and that the BIA incorrectly applied Matter of Lozada, 19 I. & N. Dec. 637 (BIA 1988). See Simeonov v. Ashcroft, 371 F.3d 532, 538 (9th Cir. 2004) (the courts are not required to make findings on issues the decision of which is unnecessary to the results).

PETITION FOR REVIEW DENIED.