Victor Alvarado Cortez v. Eric Holder, Jr. , 600 F. App'x 532 ( 2015 )

FILED
NOT FOR PUBLICATION APR 20 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
VICTOR HUGO ALVARADO CORTEZ, No. 09-70345
Petitioner, Agency No. A070-781-971
v.
MEMORANDUM*
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted April 7, 2015
Pasadena, California
Before: REINHARDT, McKEOWN, and M. SMITH, Circuit Judges.
Victor Hugo Alvarado Cortez, a native and citizen of Guatemala, petitions
for review of the Board of Immigration Appeals’ denial of his motion to reopen his
removal proceedings. We have jurisdiction under 8 U.S.C. § 1252. We review for
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
abuse of discretion. Maravilla Maravilla v. Ashcroft, 381 F.3d 855, 857 (9th Cir.
2004). We grant the petition and remand to the BIA.
We recognize equitable tolling of deadlines on motions to reopen “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. I.N.S., 321 F.3d 889, 897 (9th Cir. 2003). The BIA
either misunderstood or failed to consider the time sequence of Alvarado Cortez’s
contacts and follow up with One Stop Immigration Services as explained in the
statement submitted with his appeal brief. We remand so that the BIA may
“consider and address in its entirety the evidence submitted” to support Alvarado
Cortez on this issue. Singh v. Gonzales, 494 F.3d 1170, 1172 (9th Cir. 2007)
(quoting Mohammed v. Gonzales, 400 F.3d 785, 793 (9th Cir. 2005)); see also Sun
v. Mukasey, 555 F.3d 802, 806 (9th Cir. 2009) (granting petition where the BIA
made an erroneous factual assumption in its diligence analysis).
The BIA’s decision on whether the conduct of the “notario” at One Stop
Immigration Services constitutes “exceptional circumstances” was based on In re
Compean, Bangaly & J-E-C- (Compean I), 24 I. & N. Dec. 710 (A.G. 2009),
vacated by In re Compean, Bangaly & J-E-C- (Compean II), 25 I. & N. Dec. 1, 3
2
(A.G. 2009). In light of the vacation of Compean I, we remand for consideration
under current standards.1
Finally, the BIA did not discuss Alvarado Cortez’s fear of future persecution
based on his religious belief. See Maravilla Maravilla, 381 F.3d at 858 (requiring
the BIA to “indicate with specificity that it heard and considered petitioner’s
claims”). We also remand for consideration of this claim.2
PETITION GRANTED; REMANDED.
1
To the extent that the BIA relied on our decision in Hernandez v. Mukasey,
524 F.3d 1014 (9th Cir. 2008), it failed to consider whether the “notario” on whom
Alvarado Cortez relied was an agent of an attorney, whether Alvarado Cortez
believed that the “notario” on whom he relied was an attorney or an agent of an
attorney, or whether this case is otherwise distinguishable from Hernandez.
2
Alvarado Cortez’s motion to take judicial notice is denied as moot.
3