Rafael Lainez-Urquilla v. William Barr ( 2019 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS SEP 25 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
RAFAEL LAINEZ-URQUILLA, No. 18-72425
Petitioner, Agency No. A70-075-301
v. MEMORANDUM*
WILLIAM P. BARR, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted September 18, 2019**
Before: FARRIS, TASHIMA, and NGUYEN, Circuit Judges.
Rafael Lainez-Urquilla, a native and citizen of El Salvador, petitions for
review of the Board of Immigration Appeals’ (“BIA”) order denying his motion to
reopen deportation proceedings. We have jurisdiction under 8 U.S.C. § 1252. We
review for abuse of discretion the denial of a motion to reopen. Najmabadi v.
*
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).
Holder, 597 F.3d 983, 986 (9th Cir. 2010). We deny in part and grant in part the
petition for review, and remand.
The BIA did not abuse its discretion in denying Lainez-Urquilla’s motion to
reopen based on ineffective assistance where he filed the second motion to reopen
more than 21-years after the filing deadline, and failed to establish the due
diligence necessary to warrant equitable tolling of the filing deadline. See 8 C.F.R.
§ 1003.2(c)(2); see also Avagyan v. Holder, 646 F.3d 672, 679 (9th Cir. 2011)
(equitable tolling of the filing deadline available to a petitioner who is prevented
from timely filing a motion to reopen due to deception, fraud or error, as long as
the petitioner exercises due diligence in discovering such circumstances);
Ghahremani v. Gonzales, 498 F.3d 993, 1000 (9th Cir. 2007) (the 90-day filing
deadline runs from the date the petitioner definitively learns of prior ineffective
representation). In light of this disposition, we do not reach Lainez-Urquilla’s
remaining contentions regarding the alleged ineffective assistance of counsel. See
Simeonov v. Ashcroft, 371 F.3d 532, 538 (9th Cir. 2004) (courts and agencies are
not required to decide issues unnecessary to the results they reach).
Further, the BIA did not abuse its discretion in denying Lainez-Urquilla’s
motion to reopen based on changed country conditions in El Salvador where he
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failed to present sufficient evidence of materially changed country conditions to
qualify for the regulatory exception to the filing deadline. See 8 C.F.R.
§ 1003.2(c)(3); Najmabadi, 597 F.3d at 987-90 (new evidence lacked materiality).
The record does not support Lainez-Urquilla’s contentions that the BIA failed to
consider all relevant factors or otherwise erred in analyzing his claim. See id. at
990-91 (the BIA adequately considered evidence and sufficiently announced its
decision).
Lainez-Urquilla also sought reopening to apply for adjustment of status. In
denying Lainez-Urquilla’s motion, it does not appear that the BIA made a
determination as to this part of Lainez-Urquilla’s motion to reopen. See Sagaydak
v. Gonzales, 405 F.3d 1035, 1040 (9th Cir. 2005) (“[T]he BIA [is] not free to
ignore arguments raised by a petitioner.”). Thus, we grant the petition for review
and remand to the BIA for further proceedings consistent with this disposition. See
INS v. Ventura, 537 U.S. 12, 16-18 (2002) (per curiam).
The government shall bear the costs for this petition for review.
PETITION FOR REVIEW DENIED in part; GRANTED in part;
REMANDED.
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