NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JAN 15 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARIA JOSEFINA VALLES SANCHEZ; No. 11-73253
FERNANDO MONTES PAVON,
Agency Nos. A096-349-886
Petitioners, A096-349-887
v.
MEMORANDUM*
MATTHEW G. WHITAKER, Acting
Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted January 11, 2019**
Before: TROTT, SILVERMAN, and TALLMAN, Circuit Judges.
Maria Josefina Valles Sanchez and Fernando Montes Pavon, natives and
citizens of Mexico, petition for review of the Board of Immigration Appeals’
(“BIA”) order denying their motion to reopen. We have jurisdiction under 8
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
U.S.C. § 1252. We review for an abuse of discretion the denial of a motion to
reopen. Bonilla v. Lynch, 840 F.3d 575, 581 (9th Cir. 2016). We grant the petition
for review and remand.
The BIA abused its discretion in denying petitioners’ motion to reopen as
untimely. With respect to petitioners’ claim that multiple former attorneys
provided ineffective assistance, the BIA failed to consider petitioners’ contentions
that the notario and attorney who prepared their 2003 asylum and cancellation of
removal applications provided false information in the applications and failed to
solicit information concerning the asylum claim. See Sagaydak v. Gonzales, 405
F.3d 1035, 1040 (9th Cir. 2005) (holding that the BIA is not free to ignore
arguments raised by a petitioner). The BIA’s failure to address these contentions
undermines its grounds for rejecting equitable tolling of the filing deadline because
the BIA’s analysis relies on dates and other information in those applications that
petitioners allege were falsely provided due to the ineffective assistance. See
Bonilla, 840 F.3d at 582 (holding that equitable tolling is available to a petitioner
who is prevented from filing because of deception, fraud, or error, as long as
petitioner exercised due diligence in discovering such circumstances).
The BIA further failed to explain its conclusion that petitioners, having
alleged that the female petitioner was persecuted by a local political figure, and
was rebuffed when she sought assistance from local authorities, did not present a
2
colorable asylum claim. See Lin v. Ashcroft, 377 F.3d 1014, 1027 (9th Cir. 2004)
(in assessing whether a petitioner was prejudiced by incompetent counsel, this
court “must consider the underlying merits of the case to come to a tentative
conclusion as to whether [the petitioner’s] claim, if properly presented, would be
viable”).
Accordingly, we remand for the BIA to reassess its tolling and prejudice
determinations.
PETITION FOR REVIEW GRANTED; REMANDED.
3
Maria Valles Sanchez v. Matthew Whitaker
Combined Opinion