FILED
NOT FOR PUBLICATION JUL 29 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
MARIA VALDOVINOS QUIROZ; ANA Nos. 08-70983
ELIA VALDOVINOS QUIROZ, 08-74549
08-74650
Petitioners,
Agency Nos. A075-644-864
v. A072-530-107
ERIC H. HOLDER, Jr., Attorney General,
MEMORANDUM *
Respondent.
On Petitions for Review of Orders of the
Board of Immigration Appeals
Submitted July 19, 2010 **
Before: B. FLETCHER, REINHARDT, and WARDLAW, Circuit Judges.
In these consolidated petitions for review, Maria Valdovinos Quiroz and
Ana Elia Valdovinos Quiroz, mother and daughter and natives and citizens of
Mexico, petition for review of the Board of Immigration Appeals’ (“BIA”) order
dismissing their appeal from an immigration judge’s (“IJ”) decision denying their
*
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).
applications for cancellation of removal, as well as the BIA’s orders denying their
individual motions to reopen. Our jurisdiction is governed by 8 U.S.C. § 1252.
We review for abuse of discretion the denial of a motion to reopen, and de novo
due process claims. Iturribarria v. INS, 321 F.3d 889, 894 (9th Cir. 2003). We
dismiss the petition for review in No. 08-70983. We deny the petition for review
in No. 08-74549. We grant the petition for review in No. 08-74560. We stay the
mandate and refer these petitions to the Circuit Mediator.
To the extent that petitioners challenge the BIA’s January 10, 2008, order
dismissing their appeal, we lack jurisdiction because the petition for review is not
timely. See 8 U.S.C. § 1252(b)(1) (petition for review must be filed no later than
30 days after final removal order).
The BIA did not abuse its discretion when it denied petitioner Ana Elia
Valdovinos Quiroz’s motion, because construed as either a motion to reopen or
reconsider, it was untimely. See 8 C.F.R. § 1003.2(c)(2), (b)(2).
The BIA abused its discretion when it determined that petitioner Maria
Valdovinos Quiroz’s untimely motion to reopen was not subject to equitable
tolling of the motions deadline. See Iturribarria, 321 F.3d at 897 (court recognizes
tolling of motions deadline during periods where petitioner is prevented from filing
because of deception, fraud, or error). In its decision, the BIA noted that Maria
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was advised by present counsel of a possible ineffective assistance of counsel
claim on May 14, 2008, and Maria filed her motion to reopen on that basis on July
30, 2008, less than 90 days after the advice from counsel. See Iturribarria, 321
F.3d at 899.
Although Maria’s motion did not completely satisfy the requirements of
Matter of Lozada, 19 I. & N. Dec. 637, 639 (BIA 1988), strict compliance is not
required here because the ineffective assistance of counsel is plain on the face of
the record. See Castillo-Perez v. INS, 212 F.3d 518, 525-26 (9th Cir. 2000) (strict
Lozada compliance not required where ineffective assistance of counsel is plain on
the face of the record). At the initial hearing on remand, Maria’s former counsel
failed to inform the IJ that her U.S. citizen daughter, who the BIA had earlier noted
suffers from “serious” paranoid schizophrenia, would soon turn 21 years old. See
8 U.S.C. § 1101(b)(1) (defining “child,” in part, as a person under 21). As a result,
once the daughter turned 21, she was no longer a “qualifying relative” for Maria,
and the IJ was unable to consider Maria’s application for cancellation of removal.
See 8 U.S.C. § 1229b(b)(1).
We therefore remand Maria’s case for a prejudice determination, and any
other equitable relief the agency may consider appropriate, including any relief that
Ana may be eligible for.
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We stay the mandate, and refer these petitions to the Circuit Mediator to
explore possible resolution through mediation, considering petitioner Maria
Valdovinos Quiroz’s status as a beneficiary of an I-130 visa petition filed by her
United States citizen daughter, Yvonne; a substantial portion of the Quiroz
family’s lawful status in the United States; and the facts related to ineffectiveness
of counsel and the consequences described in this disposition. Submission of this
appeal is vacated until further order of the Court. If, in the sole judgment of the
Circuit Mediator, resolution through mediation is not possible, the Circuit
Mediator shall inform the panel. The Circuit Mediator is instructed to provide a
report to the panel every ninety (90) days following the issuance of this order. The
panel will retain jurisdiction over these petitions for review.
Ana Elia Valdovinos Quiroz’s motion to file her untimely reply brief is
granted.
In No. 08-70983, PETITION FOR REVIEW DISMISSED.
In No. 08-74549, PETITION FOR REVIEW DENIED.
In No. 08-74650, PETITION FOR REVIEW GRANTED.
MANDATE STAYED; PETITIONS REFERRED TO
CIRCUIT MEDIATOR.
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