NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS NOV 4 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
HECTOR SALVADOR GUTIERREZ- No. 18-70535
MORENO, 18-72852
Petitioner, Agency No. A075-494-448
v.
MEMORANDUM*
WILLIAM P. BARR, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted October 20, 2020**
San Francisco, California
Before: THOMAS, Chief Judge, and KELLY*** and MILLER, Circuit Judges.
Hector Salvador Gutierrez-Moreno, a native and citizen of Honduras,
petitions for review of an order of the Board of Immigration Appeals denying his
*
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).
***
The Honorable Paul J. Kelly, Jr., United States Circuit Judge for the
U.S. Court of Appeals for the Tenth Circuit, sitting by designation.
motion to reopen removal proceedings and an order denying his subsequent motion
to reconsider. We have jurisdiction under 8 U.S.C. § 1252(a)(1). Mata v. Lynch,
576 U.S. 143, 147–48 (2015). We review for abuse of discretion. Cano-Merida v.
INS, 311 F.3d 960, 964 (9th Cir. 2002). We deny both petitions.
1. Gutierrez-Moreno argues that the Board abused its discretion when it
denied his motion to reopen even though the government did not file a brief
opposing it. The Board’s regulations do not require it to grant an unopposed
motion. See 8 C.F.R. § 1003.2(g)(3). To the contrary, the Board’s Practice Manual
states that “the opposing party’s failure to oppose a motion . . . will not necessarily
result in a grant of that motion.” U.S. Dep’t of Justice, Board of Immigration
Appeals Practice Manual, ch. 5.11 (2017). The Board had no obligation to grant
the motion simply because it was unopposed. See Limsico v. INS, 951 F.2d 210,
213 (9th Cir. 1991).
Gutierrez-Moreno’s reliance on Konstantinova v. INS, 195 F.3d 528 (9th
Cir. 1999), is misplaced. There, we held that the Board’s denial of an unopposed
motion to remand because of procedural error could constitute an abuse of
discretion where the Board had discretion to waive the error and had previously
done so in almost “identical” circumstances. Id. at 530–31. Here, by contrast, the
Board lacks discretion. By statute, motions to reopen must be filed “within 90 days
of the date of entry of a final administrative order of removal.” 8 U.S.C.
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§ 1229a(c)(7)(C)(i). Gutierrez-Moreno’s motion was filed more than four years
after his final order of removal. Unlike the rule at issue in Konstantinova, the
statutory time bar is mandatory.
2. Gutierrez-Moreno next argues that the Board abused its discretion
when it found that he failed to adduce evidence of a material change in country
conditions in Honduras. In particular, he argues that the appointment of Juan
Carlos Bonilla Valladares as chief of the Honduran national police constitutes a
material change in country conditions because of Valladares’s role in leading
police killings of LGBT persons. If Gutierrez-Moreno is right, then his motion to
reopen was not time-barred. See 8 U.S.C. § 1229a(c)(7)(C)(ii).
The Board found otherwise. It explained that Gutierrez-Moreno had not
shown that Valladares remained police chief at the time of his motion, that
Valladares’s “appointment worsened the frequency or severity of human rights
violations committed by Honduran police, including extrajudicial killings,” or that
such killings had grown more common since his hearing. Those findings were
supported by substantial evidence. See 8 U.S.C. § 1252(b)(4)(B). While the record
showed that Valladares became chief of police in 2012, it also showed that by the
end of 2013, he had been replaced. The record established that extrajudicial police
killings and torture, including of LGBT persons, had occurred before Gutierrez-
Moreno’s hearing. Finally, the record showed that the Honduran government had
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taken steps to address criminality among the police. Gutierrez-Moreno argues that
he is entitled to have reasonable inferences drawn in his favor on the merits of his
asylum claim, but the Board was not required to draw such inferences in deciding
whether to deny his motion on the “independent ground[]” that he had not
“introduced previously unavailable, material [country conditions] evidence.” INS v.
Abudu, 485 U.S. 94, 104, 106–10 (1988).
3. Finally, Gutierrez-Moreno argues that he is entitled to equitable
tolling due to ineffective assistance of counsel. He alleges that his former counsel
was deficient for two reasons: (1) She failed to “identify asylum and withholding”
of removal as potential avenues of relief, and (2) she failed to “seek[] reopening
when [his] immigrant visa became current in September of 2016” to apply for
adjustment of status. To qualify for equitable tolling and successfully reopen
proceedings due to ineffective assistance of counsel, a petitioner must show that he
was prevented from timely filing by counsel’s ineffectiveness; that he exercised
due diligence in discovering counsel’s error; that he complied with Matter of
Lozada, 19 I. & N. Dec. 637 (B.I.A. 1988); and that he suffered prejudice. Singh v.
Holder, 658 F.3d 879, 884–85 (9th Cir. 2011).
On the first claim, the Board found that Gutierrez-Moreno had not
substantially complied with Lozada and had not demonstrated due diligence in
“attempting to discover or correct” his attorney’s alleged error. On reconsideration,
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Gutierrez-Moreno did not “meaningfully challenge[]” or “rebut[]” the Board’s due
diligence finding. Before this court, he does not explain how he acted diligently or
dispute the Board’s finding that he did not take “any independent action to
investigate his case prior to filing [his] motion, such as researching whether relief
might be available to aliens who are afraid to return to their home countries.”
Because the Board’s unrebutted due-diligence finding is dispositive, we need not
decide whether it abused its discretion in finding that Gutierrez-Moreno failed to
substantially comply with Lozada.
On the second claim, the Board found that Gutierrez-Moreno was not
prejudiced because even if counsel had moved to reopen when his visa became
current, his motion still would have been untimely. Gutierrez-Moreno has waived
this issue because he did not challenge the Board’s prejudice determination in his
opening brief. Ghahremani v. Gonzales, 498 F.3d 993, 997–98 (9th Cir. 2007).
PETITIONS DENIED.
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