Pinto v. Holder , 544 F. App'x 771 ( 2013 )

FILED
NOT FOR PUBLICATION NOV 14 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
CLYDE J. PINTO, No. 07-74607
Petitioner, Agency No. A070-582-939
v.
MEMORANDUM*
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted March 16, 2010**
San Francisco, California
Before: SCHROEDER, PREGERSON, and RAWLINSON, Circuit Judges.
Clyde J. Pinto, a native and citizen of India, petitions for review of the Board
of Immigration Appeals’ (“BIA”) order denying his motion to reopen removal
proceedings on the basis that his prior counsel was ineffective. We previously
filed a memorandum disposition holding that the BIA did not abuse its discretion
*
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).
in denying the motion to reopen and that Pinto’s due process claims lacked merit.
Pinto petitioned for rehearing and contended that the BIA erred by failing to
account for the positive equities that would support a favorable exercise of
discretion with respect to the motion to reopen.
We withdrew the original disposition, referred the case to the Circuit
Mediation Office, and dismissed the petition as moot. Mediation was
unsuccessful, and we ordered the government to respond to the contentions raised
in Pinto’s petition for rehearing. The government responded that the BIA’s
decision demonstrates it took into account the favorable equities.
We now reinstate our prior holding that the BIA acted within the scope of its
authority in denying Pinto’s motion on discretionary grounds, and that Pinto’s due
process claims are not persuasive. The BIA sufficiently considered the positive
equities. See Virk v. INS, 295 F.3d 1055, 1060 (9th Cir. 2002). The BIA
acknowledged that Pinto was married to a U.S. citizen and that he claimed
ineffective assistance of counsel, but found that evidence outweighed by Pinto’s
presentation of a false birth certificate and incredible testimony.
In his petition for review, Pinto has raised for the first time other positive
equities that now exist due to the passage of time, and that could support a
favorable exercise of discretion by the government under existing executive
2
policies. These include his support for his three U.S. citizen children, his long-
time employment, his wife’s potential mental illness, his lack of criminal history,
as well as the prior ineffectiveness of counsel. The petition for review of the BIA’s
2007 decision, however, must be denied.
PETITION FOR REVIEW DENIED.
3
FILED
Pinto v. Holder, No. 07-74607 NOV 14 2013
MOLLY C. DWYER, CLERK
PREGERSON, Circuit Judge, dissenting: U.S. COURT OF APPEALS
Clyde Pinto is a fifty-year-old father of three U.S. born citizen children, ages
twenty-two, twenty-one, and seven years old. His wife is a U.S. citizen. He has an
approved I-130 visa petition based on his marriage to his present wife. Pinto has
lived in the U.S. for over twenty-three years, and worked as an accountant for
various school districts in California. He has no criminal record and does not pose
a national security risk. Pinto’s wife suffers from depression and anxiety,
requiring ongoing psychological treatment. Additionally, over the course of
Pinto’s immigration proceedings, he received poor representation from multiple
attorneys.
Although the BIA noted in its decision denying the motion to reopen that
Pinto was married, the BIA erred by failing to fully consider all relevant factors,
specifically the many positive equities stated above. See Ali v. Holder, 637 F.3d
1025, 1031-32 (9th Cir. 2011) (stating that the BIA’s review of a motion to reopen
“must show proper consideration of all factors, both favorable and unfavorable”).
In doing so, the BIA abused its discretion when it denied the motion to reopen.
Because of the BIA’s abuse of discretion, I believe that Pinto should be granted the
chance to reopen his case. Accordingly, I respectfully dissent.