NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FILED
FOR THE NINTH CIRCUIT
SEP 08 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
GURDEEP SINGH and BHAGWANT No. 13-71171
SINGH,
Agency Nos. A089-679-782
Petitioners, A089-689-388
v.
MEMORANDUM*
LORETTA E. LYNCH, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted September 3, 2015**
Seattle, Washington
Before: McKEOWN, GOULD, and N.R. SMITH, Circuit Judges.
We deny Petitioners’ petition for review of the Board of Immigration
Appeals’ (“BIA”) denial of their motion to reopen on two grounds:
*
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).
1. The BIA did not abuse its discretion in concluding that Petitioners failed to
present evidence showing that equitable tolling was warranted. Petitioners argue
that, because their former counsel failed to submit a brief in support of their appeal
to the BIA, they merit equitable tolling.1 However, Petitioners knew of this failure
when the BIA issued its order, because the BIA noted that counsel failed to submit
a brief. Further, Petitioners were aware that this failure was ineffective assistance
of counsel no later than October 24, 2012, when new counsel filed their notice of
appeal to this court.
Although we recognize equitable tolling in cases involving ineffective
assistance by an attorney or representative, coupled with fraudulent or erroneous
conduct, Petitioners did not present evidence of (a) why they were prevented from
timely filing or (b) how they acted with “due diligence in discovering the
deception, fraud, or error.” Iturribarria v. INS, 321 F.3d 889, 897-98 (9th Cir.
2003). Petitioners merely argued that they acted with due diligence and “filed
within 90 days of [their] learning of [their] former attorney’s ineffective assistance
1
Petitioners also challenged prior counsel’s failure to submit proof that they
paid bonds for voluntary departure. They concede that, because they appealed the
BIA’s decision, they are no longer eligible for voluntary departure. Thus, they
cannot establish prejudice as to this claim.
2
of counsel.” These allegations alone are not sufficient to establish equitable
tolling.2
2. In the alternative, the BIA concluded that, even if the motion were timely
filed, the information in the motion failed to establish that Petitioners were
prejudiced. Id. at 899 (“To show a deprivation of due process caused by
ineffective assistance of counsel, the alien must show that counsel’s ineffective
performance prejudiced her.”). The BIA noted “the Notice of Appeal itself
included sufficiently specific arguments to explain the basis for [Petitioners’]
appeal,” and Petitioners had “not indicated what additional arguments should have
been presented during the course of their appeal.” Further, the BIA addressed the
adverse credibility claims raised in the Notice of Appeal and which would have
been briefed by counsel. Thus, the BIA did not abuse its discretion in determining
that Petitioners suffered no prejudice.3
2
Petitioners present new arguments in their opening brief to establish their
diligence. However, these arguments were not presented to the BIA. Thus, we lack
jurisdiction, because they are unexhausted. See Alvarado v. Holder, 759 F.3d 1121,
1128 (9th Cir. 2014).
3
Petitioners argue for the first time on appeal that they may have obtained a
different outcome had their counsel made cogent arguments to give explicit
examples of their credibility (which examples are raised in each of their underlying
appeals). Because these arguments were not presented to the BIA, we lack
jurisdiction to address these unexhausted claims. See Alvarado, 759 F.3d at 1128.
3
PETITION FOR REVIEW DENIED.
4