FILED
NOT FOR PUBLICATION JUN 21 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
ANTONIO SANCHEZ-GONZALEZ, No. 05-71149
Petitioner, Agency No. A079-565-632
v.
MEMORANDUM *
ERIC H. HOLDER, JR., Attorney General,
Respondent.
ANTONIO SANCHEZ-GONZALEZ, No. 05-75007
Petitioner, Agency No. A079-565-632
v.
ERIC H. HOLDER, JR., Attorney General,
Respondent.
On Petitions for Review of Orders of the
Board of Immigration Appeals
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Submitted June 11, 2013 **
San Francisco, California
Before: TASHIMA and BYBEE, Circuit Judges, and STAFFORD, Senior
District Judge***
In these consolidated petitions, Antonio Sanchez-Gonzalez (“Sanchez”)
seeks review of the Board of Immigration Appeals’ (“BIA”) denial of two motions
to reopen. We deny the petitions.
1. In the underlying removal proceedings, the Immigration Judge had
denied Sanchez’s application for cancellation of removal. The BIA agreed, but it
granted Sanchez’s request for voluntary departure. Sanchez subsequently failed to
depart (or to file a motion to reopen or petition for review) within the specified
period. Sanchez, through a second attorney, then filed a motion to reopen several
months late. The BIA denied this motion as untimely and it declined to equitably
toll the filing deadline. The BIA also held that the failure to depart rendered
Sanchez ineligible for the underlying relief requested, i.e., cancellation of removal.
Sanchez hired a third lawyer to file a second motion to reopen. This motion
asserted that the failure to depart should be excused due to the ineffectiveness of
**
The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable William H. Stafford, Jr., Senior United States District
Judge for the Northern District of Florida, sitting by designation.
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the two prior attorneys. The BIA again ruled that Sanchez was ineligible for relief
due to his failure to depart within the specified period. It also noted that Congress
had abolished the “exceptional circumstances” exception to voluntary departure
penalties. See 8 U.S.C. § 1229c(d).
2. Sanchez argues that he should have been excused from the voluntary
departure penalties due to the ineffectiveness of his prior counsel.1 This contention
is foreclosed by Granados-Oseguera v. Mukasey, 546 F.3d 1011 (9th Cir. 2008)
(per curiam). In that case, we held that ineffective assistance cannot excuse the
failure to voluntarily depart within the specified period. Id. at 1016 (“Oseguera
points to no authority that would permit an ineffective assistance of counsel claim
to trump the statutory prohibition on ‘exceptional circumstance’ arguments in
cases where the voluntary departure period has passed.”). Although we have
carved an exception from this rule for petitioners who never receive notice of the
voluntary departure order, Singh v. Holder, 658 F.3d 879, 887-88 (9th Cir. 2011),
Sanchez conceded that he received a copy of the BIA’s order and that his counsel
explained that he had only thirty days to depart.
1
The government contends that Sanchez has failed to exhaust this
claim. We disagree. Although Sanchez did not raise the precise theory that he
advances in his petition for review, his briefing to the BIA on both motions to
reopen did argue that his failure to voluntary depart was due to ineffective
assistance. We may accordingly reach the merits.
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3. Sanchez also asserts that there is an “irreconcilable conflict” between
the voluntary departure period and the motion to reopen period. A conflict has
indeed been recognized – and remedied – for petitioners who file a timely motion
to reopen before the expiration of the voluntary departure period. See Dada v.
Mukasey, 554 U.S. 1, 18 (2008). But for an alien like Sanchez who filed his
motion after the departure period has expired, there is no conflict and the departure
penalties must be enforced. De Martinez v. Ashcroft, 374 F.3d 759, 763-64 (9th
Cir. 2004) (rejecting petitioner’s argument that she should be permitted to file a
motion to reopen within the ninety-day window for such motions even though she
had overstayed the voluntary departure period).
4. Finally, Sanchez argues that the BIA erroneously denied his motion to
reissue the underlying merits decision. This claim of error is premised on the same
arguments he makes with respect to the motions to reopen; accordingly, it too is
unavailing.
PETITION DENIED.
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