Luis Maldonado-Gomez v. William Barr ( 2019 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS FEB 26 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
LUIS EDUARDO MALDONADO- No. 15-73281
GOMEZ, AKA Luis M. Gomez,
Agency No. A072-543-121
Petitioner,
v. MEMORANDUM*
WILLIAM P. BARR, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted February 8, 2019**
Pasadena, California
Before: GOULD and NGUYEN, Circuit Judges, and MARBLEY,*** District
Judge.
Petitioner Luis Eduardo Maldonado-Gomez appeals the Board of
Immigration Appeals’ (“BIA”) denial of his motion to reopen removal
*
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 Algenon L. Marbley, United States District Judge for
the Southern District of Ohio, sitting by designation.
proceedings. We have jurisdiction under 8 U.S.C. § 1252(a). Because the BIA did
not abuse its discretion, we deny the petition.
On September 21, 2005, Maldonado-Gomez’s counsel conceded his
removability and did not apply for cancellation of removal. Nearly ten years later,
on February 12, 2015, Maldonado-Gomez filed his petition to reopen, alleging
ineffective assistance of counsel because his former counsel did not raise
cancellation of removal. Maldonado-Gomez claims he discovered the alleged
ineffective assistance on August 4, 2014, when he spoke to a new attorney for the
first time about the September 2005 removal. Maldonado-Gomez argues that he is
entitled to equitable tolling due to his former counsel’s error.
The time limit for filing a motion to reopen is ninety days from the final
order of removal. 8 U.S.C. § 1229a(c)(7)(C)(i). The deadline for motions to
reopen may be equitably tolled during “periods when a petitioner is prevented from
filing because of deception, fraud, or error, as long as the petitioner acts with due
diligence in discovering the deception, fraud, or error.” Iturribarria v. INS, 321
F.3d 889, 897 (9th Cir. 2003). When evaluating due diligence, courts consider
(1) if a reasonable person in petitioner’s position would suspect the error; (2) if
petitioner “took reasonable steps to investigate” the error or if ignorant of the error,
whether petitioner “made reasonable efforts to pursue relief”; and (3) when
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petitioner “definitively learns” of the harm. Avagyan v. Holder, 646 F.3d 672, 679
(9th Cir. 2011).
Even assuming that his former counsel was ineffective, Maldonado-Gomez
has failed to show that he acted diligently during the nearly ten-year delay. Cf.
Socop-Gonzalez v. INS, 272 F.3d 1176, 1183 (9th Cir. 2001) (finding equitable
tolling when an Immigration and Naturalization service officer provided incorrect
advice to petitioner but petitioner hired counsel within about three months);
Fajardo v. INS, 300 F.3d 1018, 1019 (9th Cir. 2002) (finding equitable tolling after
a roughly five-year delay where the petitioner acted diligently by seeking new
counsel after two non-attorneys deceived her and provided inadequate legal
services); Luna v. Holder, 659 F.3d 753, 760–61 (9th Cir. 2011) (denying
equitable tolling when the petitioner timely paid the filing fee for a motion but then
failed to file it until six months later); Mejia-Hernandez v. Holder, 633 F.3d 818,
824–26 (9th Cir. 2011) (finding equitable tolling after a roughly seven-year delay
when the petitioner had compelling grounds to trust his lawyer who was successful
in obtaining relief for the petitioner’s wife). During this ten-year period,
Maldonado-Gomez again illegally reentered the United States and was removed a
second time, without filing a motion to reopen or taking any steps to explore his
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former counsel’s alleged ineffective assistance.1 Even after discovering his former
counsel’s alleged error on August 4, 2014, Maldonado-Gomez still waited nearly
six months before filing his motion to reopen on February 12, 2015. Given the
lengthy delay and on this record, we cannot say that the BIA abused its discretion
in denying the motion to reopen as untimely.
Because we deny the petition on timeliness grounds, we need not address
any other claim raised in Maldonado-Gomez’s petition.
PETITION DENIED.
1
We need not address Maldonado-Gomez’s claim that the BIA impermissibly
engaged in fact-finding in denying him equitable tolling. Even if the BIA had
construed all the facts in his declaration in his favor, the outcome would not have
been different.
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