Victor Gonzalez Salazar v. Eric Holder, Jr. ( 2013 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT OCT 01 2013
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
VICTOR GONZALEZ SALAZAR, No. 12-70749
Petitioner, Agency No. A076-728-302
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 September 11, 2013
San Francisco, California
Before: WALLACE and BERZON, Circuit Judges, and ZOUHARY, District
Judge.**
Victor Gonzalez Salazar petitions for review of an order of the Board of
Immigration Appeals (the Board or BIA) denying his motion to reopen removal
proceedings as untimely. The petition is denied.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Jack Zouhary, District Judge for the U.S. District
Court for the Northern District of Ohio, sitting by designation.
(1) Gonzalez Salazar’s motion was filed more than five years after the
Board ordered him removed, long after the ninety day deadline on motions to
reopen had expired. See 8 U.S.C. § 1229a(c)(7)(A), (C)(i); 8 C.F.R. §
1003.2(c)(2). Gonzalez Salazar maintains that his motion was nonetheless timely,
either because he was entitled to equitable tolling or because of changed country
conditions.
The Board was within its discretion to conclude that Gonzalez Salazar was
not entitled to equitable tolling. Gonzalez Salazar did not establish that he had
exercised “due diligence in discovering the deception, fraud, or error.”
Iturribarria v. INS, 321 F.3d 889, 897 (9th Cir. 2003). He did not present evidence
as to when he first “suspect[ed]” that prior counsel had rendered ineffective
assistance, or as to why he consulted counsel when he did, rather than earlier.
Avagyan v. Holder, 646 F.3d 672, 679 (9th Cir. 2011). Nor did Gonzalez Salazar
establish that waiting seven months to file his motion to reopen proceedings after
the latest possible time he could have “definitively learn[ed] of the harm resulting
from counsel’s deficiency” constituted timely filing. Id.(2) The Board did not abuse its discretion in rejecting Gonzalez Salazar’s
changed country conditions claims. Gonzalez Salazar failed to put the agency on
notice of the specific claim raised here, that conditions in Mexico have worsened
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for homosexuals. As the claim has not been exhausted, we lack subject-matter
jurisdiction to review it. See Segura v. Holder, 605 F.3d 1063, 1066 (9th Cir.
2010). Even if the claim had been exhausted, Gonzalez Salazar’s argument
regarding changed country conditions for homosexuals in Mexico would fail. See
Castro-Martinez v. Holder, 674 F.3d 1073, 1082 (9th Cir. 2011); see also
Fernandez-Ruiz v. Gonzales, 466 F.3d 1121, 1133-34 (9th Cir. 2006) (explaining
that remand of this claim to the Board would have been unnecessary, insofar as it is
“an issue the [Board] has already addressed”).
Moreover, Gonzalez Salazar’s 2007 HIV diagnosis did not constitute
“changed country conditions arising in the country of nationality[,]” 8 U.S.C.
§ 1229a(c)(7)(C)(ii), for the purpose of excusing the ninety day limitations period
on motions to reopen. A change in personal circumstances, including an HIV
diagnosis, does not excuse an untimely motion to reopen. See Almaraz v. Holder,
608 F.3d 638, 640 (9th Cir. 2010).
PETITION FOR REVIEW DENIED.
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FILED
Gonzalez Salazar v. Holder, No. 12-70749 OCT 01 2013
MOLLY C. DWYER, CLERK
BERZON, Circuit Judge, dissenting in part: U.S. COURT OF APPEALS
I join the majority with regard to Gonzalez Salazar’s lack of due diligence
and the lack of relevance of any claim of changed personal circumstances. But I
would hold that Gonzalez Salazar adequately exhausted his changed country
conditions claim, and so I would remand to the BIA for further consideration of
that issue.
“[W]e do not employ the exhaustion doctrine in a formalistic manner. . . .”
Figueroa v. Mukasey, 543 F.3d 487, 492 (9th Cir. 2008). An alien “need not use
precise legal terminology to exhaust his claim. Nor must he provide a well
developed argument to support his claim . . . .” Arsdi v. Holder, 659 F.3d 925, 929
(9th Cir. 2011). We only “inquire into whether . . . the petitioner ‘put the BIA on
notice’ as to the specific issues so that the BIA has ‘an opportunity to pass on
th[ose] issue[s].’” Figueroa, 543 F.3d at 492 (quoting Zara v. Ashcroft, 383 F.3d
927, 931 (9th Cir. 2004)) (alterations in original).
Gonzalez Salazar explicitly argued in his motion to reopen that “[c]onditions
in Mexico have changed for the worse since 1997.” His original brief supporting
that motion did not mention changed conditions for homosexuals; instead it
referenced an attached declaration discussing conditions for homosexuals in
Mexico, at length. That referenced declaration, together with articles and reports
describing increased homophobia and hate crimes in Mexico submitted with
Gonzalez Salazar’s post-remand brief, sufficed to put the agency on notice of a
changed country conditions claim. See, e.g., Aden v. Holder, 589 F.3d 1040, 1047
(9th Cir. 2009) (although petitioner did not discuss Convention Against Torture
claim at length, it was adequately exhausted where the issue was mentioned in the
conclusion of his brief).
The BIA did say, perhaps as an alternative to its conclusion that Gonzalez
Salazar “d[id] not explicitly make a claim” of changed country conditions, that it
“agree[d] with the DHS that much of the respondent’s proffered evidence was
discoverable at his former hearing.” In fact, much of Gonzalez Salazar’s evidence
submitted after remand, including recent articles and testimony regarding
worsening conditions for homosexuals in Mexico over the past ten years, could not
have been presented to the BIA during Gonzalez Salazar’s 1999 removal
proceedings.
I would therefore remand to the BIA for consideration of the changed
country conditions claim. See Aguilar-Ramos v. Holder, 594 F.3d 701, 705 (9th
Cir. 2010).
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