FILED
NOT FOR PUBLICATION DEC 27 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
KAVITA SHARMA, No. 08-70076
Petitioner, Agency No. A072-461-839
v.
MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted November 17, 2011 **
Stanford, California
Before: KOZINSKI, Chief Judge, FARRIS, Circuit Judge, and
GETTLEMAN, District Judge.***
*
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).
**
The Honorable Robert W. Gettleman, Senior United States District
Judge for the Northern District of Illinois, sitting by designation.
Petitioner seeks review of a final order of the Board of Immigration Appeals
(“BIA”) denying her untimely motion to reopen exclusion proceedings. But the
BIA’s refusal to equitably toll the filing deadline because of petitioner’s former
attorney’s alleged ineffective assistance was not “arbitrary, irrational, or contrary
to law.” Caruncho v. INS, 68 F.3d 356, 360 (9th Cir. 1995) (quoting
Padilla-Agustin v. INS, 21 F.3d 970, 973 (9th Cir. 1994)). Petitioner would be
entitled to equitable tolling only if, “despite all due diligence, [she was] unable to
obtain vital information bearing on the existence of the claim.” Socop-Gonzales v.
INS, 272 F.3d 1176, 1193 (9th Cir. 2001) (citations and internal quotation marks
omitted). Petitioner failed to demonstrate, however, that she exercised due
diligence during the nearly eleven years that elapsed between the date the BIA
entered its final order of removal and the date she filed her motion to reopen. See
id.
The BIA was well within its discretion in finding that petitioner had not
complied with Matter of Lozada, 19 I. & N. Dec. 637 (BIA 1988). Petitioner’s
motion to reopen established neither that she gave her former lawyer notice of his
alleged ineffective assistance and an opportunity to respond, nor that petitioner had
filed a disciplinary complaint against him, both of which Lozada requires. Id. at
639–40. Petitioner argues that the BIA should have applied Matter of Compean,
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24 I. & N. Dec. 710 (A.G. 2009), not Lozada, but she is incorrect; the BIA denied
petitioner’s motion to reopen on December 11, 2007, more than a year before the
Attorney General issued his decision in Compean. See id. at 741 (“[The BIA]
should apply the new filing requirements only with respect to motions filed after
today; with respect to motions filed prior to this opinion, they should continue to
apply the Lozada factors.”).
Further, because it was not “plain on the face of the administrative record”
that petitioner’s former attorney had rendered ineffective assistance, the BIA did
not abuse its discretion in declining to relax the Lozada requirements. Castillo-
Perez v. INS, 212 F.3d 518, 525 (9th Cir. 2000). Far from evincing ineffective
assistance, the record indicates that petitioner’s concerns about her 1996 asylum
application, which she had filed under an assumed name, caused her to ignore the
filing deadline.
Petitioner also argues that the BIA abused its discretion by failing to reopen
her petition sua sponte, but we lack jurisdiction to review that decision. Ekimian v.
INS, 303 F.3d 1153, 1159 (9th Cir. 2002).
DENIED.
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