FILED
NOT FOR PUBLICATION
SEP 09 2015
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ANITA REYES GUALAJARA, No. 12-71994
Petitioner, Agency No. A095-315-441
v.
MEMORANDUM*
LORETTA E. LYNCH, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted August 28, 2015**
San Francisco, California
Before: THOMAS, Chief Judge and HAWKINS and McKEOWN, Circuit Judges.
Anita Reyes Gualajara, a native and citizen of Mexico, appeals the decision
of the Board of Immigration Appeals denying her second motion to reopen her
removal proceedings. We have jurisdiction under 8 U.S.C. § 1252. We deny the
petition for review.
*
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).
We review the BIA’s denial of a motion to reopen removal proceedings for
abuse of discretion. Toufighi v. Mukasey, 538 F.3d 988, 992 (9th Cir. 2008). The
Court defers to the BIA’s exercise of discretion unless the Board acted arbitrarily,
irrationally, or contrary to law. Singh v. INS, 295 F.3d 1037, 1039 (9th Cir. 2002).
A petitioner is limited to one motion to reopen her removal proceedings, and
the motion must be filed within 90 days of the final administrative decision.
8 U.S.C. § 1229a(c)(7); 8 C.F.R. § 1003.2(c)(2). However, we permit equitable
tolling of “deadlines and numerical limits on motions to reopen or reconsider
during periods when a petitioner is prevented from filing because of deception,
fraud, or error, as long as the petitioner acts with due diligence in discovering the
deception, fraud, or error.” Iturribarria v. INS, 321 F.3d 889, 897 (9th Cir. 2003).
When determining whether to equitably toll the deadlines and numerical
limitations on motions to reopen on the basis of ineffective assistance of counsel,
we assess “when the tolling period should end; that is, when petitioner definitively
learns of the harm resulting from [her former] counsel’s deficiency, or obtains
‘vital information bearing on the existence of [her] claim.’” Avagyan v. Holder,
646 F.3d 672, 679 (9th Cir. 2011) (quoting Albillo-De Leon v. Gonzales, 410 F.3d
1090, 1100 (9th Cir. 2005)). “In many cases, this occurs when the alien obtains a
2
complete record of his immigration proceedings and is able to review that
information with competent counsel.” Id.
Gualajara does not dispute that she has filed a second motion to reopen or
that the motion was filed after 90 days from the final administrative decision.
However, she claims the time and number limitations to filing a motion to reopen
should be equitably tolled due to her former attorneys’ ineffective assistance of
counsel and acts of fraud. Gualajara’s current attorney reviewed her case file on
October 6, 2011. Even assuming that Gualajara is able to demonstrate ineffective
assistance of counsel and fraud, she did not file her motion to reopen until
February 1, 2012, after the 90-day filing period expired. See Ghahremani v.
Gonzales, 498 F.3d 993, 1000 (9th Cir. 2007) (holding that the 90-day filing
deadline runs from the date the petitioner learns of a former attorney’s ineffective
representation).
Gualajara’s arguments that the Court should equitably toll the time and
number limitations until the date of filing are not persuasive. Gualajara argues that
the filing deadline should be equitably tolled while she waited for DHS to respond
to her request to join in her motion to reopen her removal proceedings. This
argument is foreclosed by Valeriano v. Gonzales. 474 F.3d 669, 673-74 (9th Cir.
2007) (rejecting a petitioner’s request to equitably toll his filing deadline during
3
the time petitioner was waiting for the INS to respond to his request for a joint
motion to reopen).
Gualajara also argues that the panel should equitably toll the time and
number limitations during the time she was detained. But she does not
demonstrate how her detention prevented counsel from discovering any deception
or fraud on the part of her former attorneys. Her attorney was able to review her
file even while she was detained and could have discovered the alleged ineffective
representation at that time.
Finally, Gualajara argues that she did not learn that her former attorneys had
posted a voluntary departure bond on her behalf until January 17, 2012. Even
accepting Gualajara’s claim as true, her current attorney would have learned about
her former attorneys’ alleged ineffective representation as soon as he reviewed her
file in October 2011.
PETITION DENIED.
4