FILED
NOT FOR PUBLICATION
JUN 13 2016
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
INGRID YANETH MARTINEZ DEL No. 13-71120
CID,
Agency No. A072-683-612
Petitioner,
v. MEMORANDUM*
LORETTA E. LYNCH, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted April 11, 2016
Resubmitted June 13, 2016
San Francisco, California
Before: THOMAS, Chief Judge and REINHARDT and CHRISTEN, Circuit
Judges.
Ingrid Yaneth Martinez Del Cid, a native and citizen of Guatemala, petitions
for review of the Board of Immigration Appeals’s (“BIA”) denial of her motion to
reopen removal proceedings as untimely. We have jurisdiction pursuant to 8
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
U.S.C. § 1252, and review the denial of a motion to reopen removal proceedings
for abuse of discretion. Iturribarria v. INS, 321 F.3d 889, 894 (9th Cir. 2003). We
grant the petition for review.
I
Both the temporal and numerical limitations on motions to reopen are
subject to equitable tolling. Iturribarria, 321 F.3d at 897. To establish eligibility
for equitable tolling due to ineffective assistance of counsel, a petitioner must
establish first that counsel’s “deception, fraud, or error” prevented the procedurally
valid filing and, second, that the petitioner “act[ed] with due diligence in
discovering the deception, fraud, or error.” Id.
The record demonstrates that Martinez Del Cid is entitled to equitable
tolling. First, her counsel erred by “filing a worthless motion” that “wasted
[Martinez Del Cid’s] one opportunity to reopen [her] case.” Rodriguez-Lariz v.
INS, 282 F.3d 1218, 1224 (9th Cir. 2002); see Wenqin Sun v. Mukasey, 555 F.3d
802, 805–06 (9th Cir. 2009) (stating that equitable tolling “applies when a
petitioner acts promptly after discovering counsel’s error” (emphasis added)). The
sole basis upon which Martinez Del Cid could request rescission of her in absentia
removal order was a lack of notice claim. See 8 U.S.C. § 1229a(b)(5)(C). Yet,
counsel focused on a time-barred “exceptional circumstances” argument, without
2
providing any facts to justify equitable tolling, Varela v. INS, 204 F.3d 1237, 1240
(9th Cir. 2000), and otherwise failed to put forward a cogent, or legally viable,
argument regarding lack of notice, Salta v. INS, 314 F.3d 1076, 1079 (9th Cir.
2002).
Second, Martinez Del Cid acted with due diligence. Martinez Del Cid
reasonably relied on former counsel to guide her through the proceedings until
counsel informed Martinez Del Cid that her case was “very difficult” and that he
could therefore no longer provide assistance. Within one month, Martinez Del Cid
sought new counsel, learned of the ineffective assistance, and filed the third motion
to reopen. Thus, Martinez Del Cid is entitled to equitable tolling of the numerical
and temporal limitations on motions to reopen. See Iturribarria, 321 F.3d at 895
(concluding that the “full extent” of the fraudulent conduct is often “not as a
practical matter discoverable until [a petitioner] review[s] [the] case file with new
counsel”).1
1
Neither the BIA nor the parties discuss the merits of Martinez Del Cid’s
due process claim for reopening due to ineffective assistance of counsel, “instead
treating the ineffective assistance question as part of [their] analysis of equitable
tolling.” Rodriguez-Lariz v. INS, 282 F.3d at 1226. On remand, the BIA must
reach the merits of the due process ineffective assistance claim.
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II
The BIA erred by concluding that Martinez Del Cid failed to satisfy the
procedural requirements of Matter of Lozada, 19 I. & N. Dec. 637 (BIA 1988), by
impermissibly changing the second and third Lozada factors “without giving
[Martinez Del Cid] notice of the change and an opportunity to present the required
proof.” Correa-Rivera v. Holder, 706 F.3d 1128, 1132 (9th Cir. 2013).
The second Lozada factor “calls for notice to [former] counsel, although it
doesn’t explain how that notice is to be delivered.” Id. at 1131. The BIA erred by
requiring Martinez Del Cid to provide notice in a particular way, namely, by
serving former counsel with a copy of the affidavit provided pursuant to the first
Lozada factor. Her current counsel’s affidavit was thus sufficient to satisfy the
second factor. See Bhasin v. Gonzales, 423 F.3d 977, 987 (9th Cir. 2005)
(concluding that “facts presented in affidavits supporting a motion to reopen must
be accepted as true unless inherently unbelievable”). As to the third factor, it is
sufficient that Martinez Del Cid included with the motion to reopen a copy of a
completed attorney complaint form and asserted before the BIA that the form was
filed with the appropriate state agency. Correa-Rivera, 706 F.3d at 1311–32.
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Martinez Del Cid complied with Matter of Lozada’s procedural
requirements. On remand, the BIA can reach the merits of Martinez Del Cid’s due
process ineffective assistance of counsel claim.
III
Martinez Del Cid does not argue that the BIA erred by denying her “motion
to reopen proceedings for the purpose of submitting an application for relief,” 8
C.F.R. § 1003.2(c)(1), and has thus waived any argument on this issue. Dilley v.
Gunn, 64 F.3d 1365, 1367 (9th Cir. 1995). However, this waiver does not preclude
Martinez Del Cid from requesting reopening to reinstate removal proceedings
because her former counsel provided ineffective assistance. Socop-Gonzalez v.
INS, 272 F.3d 1176, 1196 (9th Cir. 2001) (en banc) (distinguishing requests to
reopen for the purpose of applying for relief from removal from requests to reopen
for the purpose of reinstating proceedings).
IV
The BIA correctly concluded that res judicata prevents Martinez Del Cid
from rescinding her in absentia removal order due to a lack of notice—this Court
has rendered a final judgment on that claim. Valencia-Alvarez v. Gonzales, 469
F.3d 1319, 1323–24 (9th Cir. 2006). However, there is no final judgment on the
merits of Martinez Del Cid’s ineffective assistance of counsel claim. Res judicata
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therefore does not bar the BIA from determining whether former counsel’s
deficiency deprived Martinez Del Cid of her Fifth Amendment right to due process
in removal proceedings.
PETITION GRANTED; REMANDED.
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