FILED
NOT FOR PUBLICATION JAN 28 2011
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, AMENDED
MEMORANDUM *
Respondent.
On Petitions for Review of Orders of the
Board of Immigration Appeals
Submitted July 19, 2010 **
Amended January 28, 2011
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
*
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).
dismissing their appeal from an immigration judge’s (“IJ”) decision denying their
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).
In our memorandum decision, filed July 19, 2010, we dismissed the petition
for review in No. 08-70983, denied the petition for review in No. 08-74549,
granted the petition for review in No. 08-74560, and stayed the mandate and
referred these petitions to the Circuit Mediator. During the mediation process,
petitioner Ana Elia Valdovinos Quiroz filed a motion to remand her case which
respondent opposed. Ana has now filed a motion to withdraw her motion to
remand. Respondent has filed a motion to amend our prior decision and disposition
of No. 08-74549 and to remand Ana’s case to the BIA for consideration of whether
the disposition of Maria’s ineffective assistance of counsel claims affects Ana’s
application for cancellation of removal.
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).
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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
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,
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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.
We grant the motion of Ana Elia Valdovinos Quiroz to withdraw her
opposed motion to remand. We grant respondent’s motion to amend and to remand
Ana’s case to the BIA to consider whether its disposition of Maria’s ineffective
assistance of counsel claim affects Ana’s application for cancellation of removal
and any other equitable relief for which Ana may be eligible.
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 REMANDED.
In No. 08-74550, PETITION FOR REVIEW GRANTED.
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