J Eugenio Garcia-Castillo v. Eric Holder, Jr.

FILED
NOT FOR PUBLICATION NOV 20 2012

MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS

FOR THE NINTH CIRCUIT

J EUGENIO GARCIA-CASTILLO; No. 11-72061
SARA BORJAS,
Agency Nos. A075-708-961
Petitioners, A075-708-962

v.
MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,

Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals

Submitted November 13, 2012 **

Before: CANBY, TROTT, and W. FLETCHER, Circuit Judges.

Eugenio Garcia-Castillo and Sara Borjas, natives and citizens of Mexico,

petition for review of an order of the Board of Immigration Appeals (“BIA”)

denying their motion to reconsider the BIA’s prior order denying their motion to

*
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).
reopen removal proceedings based on a claim of ineffective assistance of counsel.

Our jurisdiction is governed by 8 U.S.C. § 1252. We review for abuse of

discretion the BIA’s denial of a motion to reconsider and review for substantial

evidence factual findings underlying the denial of a claim of ineffective assistance

of counsel. Mohammed v. Gonzales, 400 F.3d 785, 791 (9th Cir. 2005). We deny

in part and dismiss in part the petition for review.

The BIA did not abuse its discretion by denying petitioners’ motion to

reconsider because they failed to identify any error of fact or law in the BIA’s prior

order denying their motion to reopen as untimely and as not warranting equitable

tolling of the filing deadline. See Yeghiazaryan v. Gonzales, 439 F.3d 994, 998

(9th Cir. 2006) (“In filing a motion to reconsider, the petitioner must ‘specify[] the

errors of fact or law in the prior B[IA] decision . . . .’” (citation omitted)); see also

Valeriano v. Gonzales, 474 F.3d 669, 673 (9th Cir. 2007) (declining to extend

equitable tolling based on the tactical decision of the petitioner’s attorney to delay

filing of a motion to reopen while he waited for the government’s response to a

request to join in a motion to reopen, because the response was nonvital to the

filing of the motion to reopen). Because these determinations were dispositive of

the motion to reopen, the BIA did not need to address petitioners’ contentions that

their prior attorney performed ineffectively or that his actions caused them

2 11-72061
prejudice. See INS v. Bagamasbad, 429 U.S. 24, 25 (1976) (“As a general rule

courts and agencies are not required to make findings on issues the decision of

which is unnecessary to the results they reach.” (citations omitted)).

To the extent that petitioners also seek review of the BIA’s refusal to reopen

their removal proceedings sua sponte, we lack jurisdiction to consider this

contention. See Mejia-Hernandez v. Holder, 633 F.3d 818, 823-24 (9th Cir. 2011).

Because these foregoing determinations are dispositive of the present

petition for review, we decline to consider petitioners’ remaining contentions

regarding ineffective assistance. See Mendez-Alcaraz v. Gonzales, 464 F.3d 842,

844 (9th Cir. 2006) (declining to reach nondispositive challenges to a BIA order).

PETITION FOR REVIEW DENIED in part; DISMISSED in part.

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