Luis Perez-Camacho v. Merrick Garland ( 2022 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
LUIS PEREZ-CAMACHO, No. 19-72063
Petitioner,
Agency No.
v. A038-974-117
MERRICK B. GARLAND, Attorney
General, OPINION
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted March 11, 2022
Pasadena, California
Filed August 1, 2022
Before: Sandra S. Ikuta, Kenneth K. Lee, and
Danielle J. Forrest, Circuit Judges.
Opinion by Judge Ikuta
2 PEREZ-CAMACHO V. GARLAND
SUMMARY*
Immigration
Denying in part and dismissing in part Luis Perez-
Camacho’s petition for review of a decision of the Board of
Immigration Appeals, the panel concluded that the BIA did
not err in denying Perez-Camacho’s motion to reopen, which
challenged his removal order on the ground that his
underlying conviction was allegedly invalid.
In 2005, Perez-Camacho, a lawful permanent resident,
was ordered removed based on a 1997 conviction. He then
filed a motion to reopen, which was denied. In 2018, he filed
a second motion to reopen, claiming that he was no longer
removable as charged because a state court, in 2018, had
modified his conviction due to a “constitutional defect” in his
criminal proceeding. Perez-Camacho argued that his removal
order was invalid, and therefore, the BIA should reopen
proceedings, set aside his removal order, and terminate
proceedings. The BIA denied the motion as both number-
barred (because an alien may file only one motion to reopen)
and time-barred (because a motion to reopen must be filed
within 90 days of a final order of removal). The BIA also
held that equitable tolling was not available and that sua
sponte reopening was not warranted.
The panel concluded that none of the circumstances in
which an alien may challenge a removal order based on the
claim that a conviction underlying a removal order is invalid
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
PEREZ-CAMACHO V. GARLAND 3
were applicable here. First, the BIA’s authority to consider
such a challenge when the alien brings a motion to reopen
that is not time- or number-barred was not implicated here.
Next, Perez-Camacho could not raise arguments that are
available for an alien challenging a reinstatement proceeding
or reinstatement order. The panel explained that an alien
challenging reinstatement may show that he suffered a gross
miscarriage of justice on the ground that an underlying
conviction was invalid due to a merits-based defect, and
would not be required to show due diligence. In contrast,
Perez-Camacho’s removal order had not been reinstated and
his challenge to his removal order was subject to the
regulatory number and time bar for motions to reopen. The
panel further explained that Perez-Camacho did not argue to
the BIA that his motion met any regulatory exception to the
time and number bar, and any such argument was
unexhausted.
The panel also concluded that the BIA did not abuse its
discretion in deciding that equitable tolling of the time and
number bar was not available to Perez-Camacho, explaining
that he waited 21 years to seek modification of his conviction,
provided no basis as to his reasonable efforts to pursue relief
during that period, and provided no explanation for such an
exceedingly long delay.
Finally, the panel concluded that it lacked jurisdiction to
consider whether the BIA erred in denying Perez-Camacho’s
request to sua sponte reopen proceedings, because the BIA
committed no legal or constitutional error in determining that
his 1997 conviction was not vacated due to a merits-based
defect.
4 PEREZ-CAMACHO V. GARLAND
COUNSEL
Douglas Jalaie (argued), Los Angeles, California, for
Petitioner.
Rachel L. Browning (argued), Trial Attorney; Keith I.
McManus, Assistant Director; Ethan P. Davis, Acting
Assistant Attorney General; Office of Immigration Litigation,
Civil Division, United States Department of Justice,
Washington, D.C.; for Respondent.
OPINION
IKUTA, Circuit Judge:
There are various circumstances in which an alien may
challenge a removal order on the ground that the conviction
underlying the removal order was subsequently vacated (or
modified) due to a procedural or substantive error. For
instance, an alien may raise such a challenge in a timely
motion to reopen, in a challenge to a reinstatement order or
proceeding, or in an untimely motion to reopen if it is eligible
for equitable tolling. Because the alien in this case brought
a time- and number-barred motion to reopen that is not
subject to equitable tolling, the Board of Immigration
Appeals (BIA) did not err in denying his challenge to the
removal order on the ground that the underlying conviction
was allegedly invalid.
I
Luis Perez-Camacho, a native and citizen of Mexico, was
admitted to the United States as a lawful permanent resident
PEREZ-CAMACHO V. GARLAND 5
in 1985. In 1997, Perez-Camacho pleaded guilty to one count
of inflicting corporal injury on a spouse in violation of
section 273.5(a) of the California Penal Code. The
Department of Homeland Security (DHS) served Perez-
Camacho with a notice to appear (NTA), charging him with
being removable under 8 U.S.C. § 1227(a)(2)(E)(i) as an alien
“convicted of a crime of domestic violence” after admission.
Perez-Camacho’s removal hearing had been scheduled for
April 2005, but was rescheduled to June 1, 2005. Perez-
Camacho failed to appear and was ordered removed in
absentia. In August 2005, Perez-Camacho filed a motion to
reopen, which was denied.
In September 2018, Perez-Camacho filed a second motion
to reopen. Perez-Camacho claimed the immigration judge
(IJ) lacked jurisdiction over his case under Pereira v.
Sessions, 138 S. Ct. 2105 (2018), because his 2005 notice to
appear did not contain the date or time of his hearing. Perez-
Camacho also claimed that the decision in Pereira constituted
an extraordinary circumstance that prevented him from timely
filing a motion to reopen, despite his reasonable diligence.
Therefore, he requested equitable tolling of the motion to
reopen deadline. In the alternative, he requested that the BIA
sua sponte reopen his removal proceedings.
While his second motion to reopen was pending, Perez-
Camacho submitted a supplemental brief to the BIA which
claimed that he was no longer removable as charged in 2005
because a state court had modified his 1997 conviction due to
a “constitutional defect” in the criminal proceedings. In
support of this argument, Perez-Camacho attached a
computer printout of state court minutes, dated November 2,
6 PEREZ-CAMACHO V. GARLAND
2018.1 According to Perez-Camacho, the state court amended
the original complaint against Perez-Camacho to add a
second count, the offense of domestic battery under section
243(e)(1) of the California Penal Code. The court then
dismissed Count 1 (the original violation of section 273.5(a),
inflicting corporal injury on a spouse), and accepted Perez-
Camacho’s plea of no contest to Count 2. The state court
took this action based on a stipulation by the parties that the
district attorney would have accepted a guilty plea to
domestic battery under section 243(e)(1) in 1997 if defense
counsel had offered it. In his supplemental brief, Perez-
Camacho argued that the stipulation established that his
defense counsel rendered ineffective assistance resulting in a
conviction for violating section 273.5(a), which made him
removable under 8 U.S.C. § 1227(a)(2)(E)(i). In Perez-
Camacho’s view, absent defense counsel’s ineffective
1
The printout stated, in pertinent part:
Violation of Section 243(E)(1) PC. The Court finds the
defendant guilty.
Count (02): Disposition: Convicted
Court finds that there is a factual basis for defendant’s
plea, and Court accepts plea.
Defense motion to withdraw plea as to Count 1 is
granted.
Both parties stipulate, that if on 7/10/1997, the defense
attorney would ha[ve] counter offered for a Count 2
243(E)(1), the district attorney would ha[ve] agreed to
counter offer, as it reflects in the court reporter’s
official notes.
The court orders the date of 11/30/18, vacated.
PEREZ-CAMACHO V. GARLAND 7
assistance, he would have been convicted of violating section
243(e)(1), which is not a removable offense. Because the
state court’s action was based on a constitutional defect,
according to Perez-Camacho, his removal order was invalid.
Therefore, he argued, the BIA should apply principles of
equitable tolling to reopen proceedings, set aside the removal
order based on the now-modified 1997 conviction, and
terminate proceedings.
The BIA denied the motion. The BIA first held that the
motion to reopen was both number-barred (because Perez-
Camacho had previously filed a motion to reopen in 2005)
and time-barred (because it was filed more than 13 years after
the entry of his final order of removal).2 The BIA next held
that the modification of the 1997 conviction did not justify
equitable tolling of the deadline for motions to reopen,
because the modification occurred more than 13 years after
the deadline expired and Perez-Camacho failed to explain
why he waited 21 years after his 1997 conviction to apply for
the modification. The BIA also held that the 2018
modification did not constitute an exceptional situation that
would warrant sua sponte reopening.3
2
The BIA also ruled that Karingithi v. Whitaker, 913 F.3d 1158 (9th
Cir. 2019), foreclosed Perez-Camacho’s argument that a notice to appeal
that fails to specify the time or place of removal proceedings deprives the
IJ of jurisdiction. Because Perez-Camacho failed to raise any argument
challenging this ruling in his brief on appeal, the issue is deemed waived.
See Cui v. Garland, 13 F.4th 991, 999 n.6 (9th Cir. 2021).
3
In the alternative, the BIA held that even assuming Perez-
Camacho’s motion was timely filed and numerically authorized, it was not
grounds for reopening. Citing to Matter of Chavez-Martinez, 24 I. & N.
Dec. 272 (BIA 2007), the BIA stated that Perez-Camacho had failed to
prove that his 1997 conviction was not vacated solely for immigration
purposes. Further, the BIA observed that the state court printout did not
8 PEREZ-CAMACHO V. GARLAND
Perez-Camacho timely petitioned for review of the BIA’s
decision. We have jurisdiction under 8 U.S.C. § 1252.
II
On appeal, Perez-Camacho argues that the conviction
underlying his removal order is no longer a removable
offense, and therefore his second motion to reopen should
have been granted under a “gross miscarriage of justice”
exception. Alternatively, Perez-Camacho argues that he was
entitled to equitable tolling of the deadline for bringing his
second motion to reopen, and that the BIA erred in denying
sua sponte reopening.
A
We generally have jurisdiction over the BIA’s denial of
a motion to reopen, 28 U.S.C. § 1252(a), Kucana v. Holder,
558 U.S. 233, 242 (2010), which includes review of the
BIA’s determination that an “alien has failed to provide a
sufficient justification for an untimely motion” to reopen, Sun
v. Mukasey, 555 F.3d 802, 805 (9th Cir. 2009). We review
the agency’s denial of a motion to reopen for abuse of
discretion, Sharma v. INS, 89 F.3d 545, 547 (9th Cir. 1996),
and reverse only if the decision was “arbitrary, irrational, or
contrary to law,” Silva v. Garland, 993 F.3d 705, 718 (9th
show that the state court modified Perez-Camacho’s 1997 conviction “in
order to correct a substantive or constitutional defect in the original
judgment or for any other reason unrelated to the amelioration of
immigration hardships.” Therefore, the BIA reasoned, the minutes from
the state court proceedings were “not tantamount to a judicial
determination that defense counsel provided ineffective assistance by
‘failing’ to offer such a plea or that the original conviction under Cal.
Penal Code § 273.5 was somehow inconsistent with the evidence.”
PEREZ-CAMACHO V. GARLAND 9
Cir. 2021). The agency’s findings of fact are conclusive
unless any reasonable adjudicator would be compelled to
conclude to the contrary. 8 U.S.C. § 1252(b)(4)(B); see also
Kin v. Holder, 595 F.3d 1050, 1054 (9th Cir. 2010).
B
An alien may challenge a removal order on the ground
that the conviction underlying that order had been vacated in
several different circumstances.
1
First, when an alien brings a motion to reopen that is
neither time nor number-barred,4 and challenges a removal
order on the ground that it is based on a prior conviction that
has been vacated or modified, the BIA may consider
whether this claim demonstrates the alien’s eligibility for
relief. 8 U.S.C. § 1229a(c)(7); 8 C.F.R. § 1003.2(c);
Cardoso-Tlaseca v. Gonzales, 460 F.3d 1102, 1104–05, 1107
(9th Cir. 2006). If the conviction was vacated or modified
“because of a procedural or substantive defect in the criminal
proceedings,” Poblete Mendoza v. Holder, 606 F.3d 1137,
1141 (9th Cir. 2010), it “is not considered a conviction for
immigration purposes and cannot serve as the basis for
removability,” Nath v. Gonzales, 467 F.3d 1185, 1189 (9th
Cir. 2006) (internal quotation marks and citation omitted).
4
Under the Immigration and Nationality Act (INA), “[a]n alien may
file one motion to reopen proceedings” with exceptions not applicable
here, and must file it “within 90 days of the date of entry of a final
administrative order of removal.” 8 U.S.C. § 1229a(c)(7)(A) and (C)(i).
10 PEREZ-CAMACHO V. GARLAND
This may lead the BIA to grant the alien’s motion to reopen
the immigration proceedings.5
In this context, we have considered the effect of an
invalid conviction on the so-called “departure bar” to an
alien’s ability to challenge a removal order. Before 1996, the
INA precluded the BIA from reviewing a challenge to a
removal order brought by an alien who had been removed
from the United States. See 8 U.S.C. § 1105a(c) (2020);
8 C.F.R. § 3.2.6 We held that, if an alien’s removal order was
based on an invalid conviction, the departure bar did not
apply because the alien’s departure had not been “legally
executed.” Wiedersperg v. I.N.S., 896 F.2d 1179, 1182 (9th
5
If a conviction is vacated “for reasons ‘unrelated to the merits of the
underlying criminal proceedings’” it remains a conviction in removal
proceedings. Poblete Mendoza, 606 F.3d at 1141 (quoting Nath, 467 F.3d
at 1189). For example, the reclassification of a conviction for
rehabilitative purposes, rather than substantive purposes, does not affect
removability or eligibility for relief. Prado v. Barr, 949 F.3d 438, 441
(9th Cir. 2020).
6
8 U.S.C. § 1005a(c) provided in part:
An order of deportation or of exclusion shall not be
reviewed by any court if the alien has not exhausted the
administrative remedies available to him as of right
under the immigration laws and regulations or if he has
departed from the United States after the issuance of the
order.
8 C.F.R. § 3.2 provided in part:
A motion to reopen or a motion to reconsider shall not
be made by or in behalf of a person who is the subject
of deportation proceedings subsequent to his departure
from the United States.
PEREZ-CAMACHO V. GARLAND 11
Cir. 1990). Therefore, where a conviction that constituted a
“key part of the government’s case in the deportation
proceeding” was later invalidated because of a procedural or
substantive defect, the BIA had jurisdiction to consider an
alien’s motion to reopen. Id. (citation omitted).7 After the
statutory departure bar was repealed in 1996, we have applied
this rule to timely motions to reopen by removed aliens, see
Reyes-Torres v. Holder, 645 F.3d 1073, 1075 (9th Cir. 2011);
Cardoso-Tlaseca, 460 F.3d at 1104–05, 1106–07; Nath,
467 F.3d at 1189.8
7
Section 1105a was repealed in 1996, but the departure bar was
retained in 8 C.F.R § 1003.2(d), which provides in full:
Departure, deportation, or removal. A motion to reopen
or a motion to reconsider shall not be made by or on
behalf of a person who is the subject of exclusion,
deportation, or removal proceedings subsequent to his
or her departure from the United States. Any departure
from the United States, including the deportation or
removal of a person who is the subject of exclusion,
deportation, or removal proceedings, occurring after the
filing of a motion to reopen or a motion to reconsider,
shall constitute a withdrawal of such motion.
8
Because Wiedersperg was decided before the regulatory time-and-
number bar went into effect, its statement that the alien in that case was
not barred from raising his claims despite the multi-year delay in filing his
motion to reopen, see Wiedersperg, 896 F.2d at 1181, does not excuse an
alien from the current regulations’ timing requirements. See Executive
Office for Immigration Review; Motions and Appeals in Immigration
Proceedings, 61 Fed. Reg. 18,900 (April 29, 1996) (the final agency rule
establishing the time limit for motions to reopen).
12 PEREZ-CAMACHO V. GARLAND
2
Second, an alien may prevail on a claim that a conviction
underlying a removal order is invalid and no longer provides
a basis for removal in a challenge to a reinstatement
proceeding or order. If an alien has been removed from the
country and reenters illegally, and an immigration officer
reinstates the alien’s prior order of removal, the alien may not
file a motion to reopen the prior removal proceedings. See
8 U.S.C. § 1231(a)(5).9 Nevertheless, the alien may
challenge the reinstatement proceeding itself (or the
reinstatement order) on legal or constitutional grounds. See
Vega-Anguiano v. Barr, 982 F.3d 542, 547 (9th Cir. 2019);
Garcia de Rincon v. Dep’t of Homeland Security, 539 F.3d
1133, 1137 (9th Cir. 2008). In a challenge to a reinstatement
proceeding or order, the alien may make a “collateral attack
on the underlying removal order,” if “the petitioner can show
that he has suffered a ‘gross miscarriage of justice’” in the
initial removal proceedings. Cuenca v. Barr, 956 F.3d 1079,
1087 (9th Cir. 2020) (quoting Garcia de Rincon, 539 F.3d
at 1138). An alien may show such a gross miscarriage of
justice if the conviction on which the removal order was
based is invalid because of a merits-based defect. See Vega-
Anguiano, 982 F.3d at 549. In this sort of challenge to a
9
8 U.S.C. § 1231(a)(5) provides:
If the Attorney General finds that an alien has reentered
the United States illegally after having been removed or
having departed voluntarily, under an order of removal,
the prior order of removal is reinstated from its original
date and is not subject to being reopened or reviewed,
the alien is not eligible and may not apply for any relief
under this chapter, and the alien shall be removed under
the prior order at any time after the reentry.
PEREZ-CAMACHO V. GARLAND 13
reinstatement proceeding or order, “there is no diligence
requirement that limits the time during which a collateral
attack on the deportation or removal order may be made
based on a showing of gross miscarriage of justice.” Id. If
the court determines there was a gross miscarriage of justice,
the removal order cannot be reinstated, although the alien
may be subject to a new order of removal. Id. at 551.
3
Third, even if an alien brings a motion to reopen that is
time- or number-barred, the BIA may consider the alien’s
challenge to a removal order based on the invalidity of an
underlying conviction in certain circumstances.
As a general rule, “[a]n alien may file one motion to
reopen proceedings” and must file it “within 90 days of the
date of entry of a final administrative order of removal.”
8 U.S.C. § 1229a(c)(7)(A) and (C)(i). The regulations
provide seven exceptions to this number and time bar. See
8 C.F.R. § 1003.2(c)(3). There is no exception for claims that
an alien’s removal order was based on an invalid conviction,
and thus constitutes a gross miscarriage of justice.10
10
There is, however, a regulatory exception for a time- and number-
barred motion to reopen:
For which a three-member panel of the Board agrees
that reopening is warranted when the following
circumstances are present, provided that a respondent
may file only one motion to reopen pursuant to this
paragraph (c)(3):
(A) A material change in fact or law underlying a
removability ground or grounds specified in
14 PEREZ-CAMACHO V. GARLAND
Nevertheless, an alien can secure review of a motion to
reopen that would otherwise be time- and number-barred if
the deadline is subject to equitable tolling. See
Salazar-Gonzalez v. Lynch, 798 F.3d 917, 920 (9th Cir.
2015). Equitable tolling may be available “when a petitioner
is prevented from filing because of deception, fraud, or
error,” which includes receiving ineffective assistance of
counsel, “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). The party invoking
equitable tolling must have been prevented from obtaining
“vital information bearing on the existence of the claim”
despite the exercise of “all due diligence,” Luna v. Holder,
659 F.3d 753, 759 (9th Cir. 2011) (cleaned up), or “[t]he
party’s ignorance of the necessary information must have
been caused by circumstances beyond the party’s control,”
Valeriano v. Gonzales, 474 F.3d 669, 673 (9th Cir.2007)
(internal quotation marks and citation omitted). In this
context, a determination of an alien’s diligence is case-
specific, and turns on “the reasonableness of petitioner’s
actions in the context of his or her particular circumstances.”
section 212 [8 U.S.C. § 1182, grounds of
inadmissibility] or 237 [8 U.S.C. § 1227, grounds
of deportability] that occurred after the entry of an
administratively final order that vitiates all grounds
of removability applicable to the alien; and
(B) The movant exercised diligence in pursuing the
motion to reopen.
8 C.F.R. § 1003.2(c)(3)(v). This regulatory exception was effective as of
January 2021, see 85 FR 81588-01, and we have not yet addressed the
question whether the vacatur or modification of a conviction underlying
a removal order may constitute a “material change in fact or law” for
purposes of this exception.
PEREZ-CAMACHO V. GARLAND 15
Bonilla v. Lynch, 840 F.3d 575, 582 (9th Cir. 2016) (citation
omitted).
In determining whether an alien exercised due diligence
in alleging ineffective assistance of counsel, we consider
when a reasonable person in the alien’s position “would
suspect the specific fraud or error underlying her motion to
reopen.” Id. (quoting Avagyan v. Holder, 646 F.3d 672, 679
(9th Cir. 2011)). We also consider whether the alien “took
reasonable steps to investigate the [attorney’s] suspected
fraud or error” or, if the alien was “ignorant of counsel’s
shortcomings,” whether the alien “made reasonable efforts to
pursue relief.” Id. (quoting Avagyan, 646 F.3d at 679). We
have held that an alien satisfied the diligence requirement
when she moved to reopen proceedings, on the ground of
ineffective assistance of counsel, less than one month after
she learned of her counsel’s failures. See Sun, 555 F.3d
at 806. By contrast, we have affirmed the agency’s denial of
tolling where an alien who waited six years to negate his
deportation order based on alleged ineffective assistance of
counsel failed to establish that he made “reasonable efforts to
pursue relief” during the “exceedingly long” six-year delay.
Bonilla, 840 F.3d at 583.
4
Finally, until January 2021, the regulations provided that
the BIA could at any time reopen proceedings sua sponte.
See 8 C.F.R. § 1003.2(a) (2020).11 To obtain such relief, the
11
After January 15, 2021, the regulations provide that the BIA “may
at any time reopen or reconsider a case in which it has rendered a decision
on its own motion solely in order to correct a ministerial mistake or
typographical error in that decision or to reissue the decision to correct a
16 PEREZ-CAMACHO V. GARLAND
BIA “must be persuaded that the respondent’s situation is
truly exceptional.” Bonilla, 840 F.3d at 585 (internal
quotation marks and citation omitted). We generally lack
jurisdiction to review decisions denying sua sponte
reopening. Menendez-Gonzalez v. Barr, 929 F.3d 1113, 1117
(9th Cir. 2019). We may, however, exercise discretion “for
the limited purpose of reviewing the reasoning behind the
decisions for legal or constitutional error.” Bonilla, 840 F.3d
at 588.
III
We now consider Perez-Camacho’s argument that the
BIA erred in not granting his second motion to reopen. We
conclude that none of the circumstances in which an alien
may challenge a removal order based on the claim that a
conviction underlying a removal order is invalid are
applicable here.
First, the BIA’s authority to consider a challenge to a
removal order when the alien brings a motion to reopen that
is not time- or number-barred, see supra Section II.B.1; see
also Cardoso-Tlaseca, 460 F.3d at 1104–05, 1107, is not
implicated here. Perez Camacho filed his first motion to
reopen in 2005, and the second motion to reopen was filed
13 years after the entry of his final order of removal.
Next, because Perez-Camacho is challenging his original
removal order, he cannot raise arguments that are available
for an alien who is challenging a reinstatement proceeding or
defect in service.” 8 C.F.R. § 1003.2(a)(1) (2020). The amended
regulations impose the same limitations on the IJ. 8 C.F.R.
§ 1003.23(b)(1).
PEREZ-CAMACHO V. GARLAND 17
reinstatement order. See supra Section II.B.2. An alien in
that situation may make a collateral challenge to a removal
order based on legal or constitutional grounds, and would not
be required to show due diligence, see Vega-Anguiano, 982
F.3d at 545, but Perez-Camacho’s situation is different
because his removal order has not been reinstated and his
challenge to his removal order is subject to a regulatory
number and time bar.12 Perez-Camacho did not argue to the
BIA that his motion meets any exception to that bar under 8
C.F.R. § 1003.2(c)(3), and any such argument is unexhausted.
Therefore, the BIA did not err in denying Perez-Camacho’s
motion to reopen as time- and number-barred and we lack
jurisdiction to consider any argument regarding this
unexhausted claim, see 8 U.S.C. § 1252(d)(1); Amaya v.
Garland, 15 F.4th 976, 986 (9th Cir. 2021).
We also reject Perez-Camacho’s argument that equitable
tolling was applicable to his motion to reopen because he
filed a supplement to his motion with evidence of his
modified conviction within days after the state court’s
modification order. The BIA denied Perez-Camacho’s
argument for equitable tolling because he failed to explain
how he was prevented from discovering the ineffective
assistance of defense counsel. See Iturribarria, 321 F.3d at
897. We have held that an agency does not err by denying
equitable tolling when the alien failed to raise a motion to
reopen for six years without a reasonable explanation. See
Bonilla, 840 F.3d at 580. Here, Perez-Camacho waited
21 years (13 of which occurred after his final order of
12
Because Wiedersperg was decided before the INA imposed the
existing time and number bar on motions to reopen, our determination that
the alien in that case was not barred from raising a motion to reopen
despite the long delay, 896 F.2d at 1181, is not implicated here.
18 PEREZ-CAMACHO V. GARLAND
removal was rendered) to seek modification of his conviction
in state court based on the defense counsel’s alleged
ineffective representation in 1997, and Perez-Camacho
provided no basis as to his “reasonable efforts to pursue
relief” during the 21-year period, nor provided any
explanation for such an “exceedingly long” delay. Id. at 583.
Therefore, the BIA did not abuse its discretion in concluding
that equitable tolling was not available.
Finally, we lack jurisdiction to consider whether the BIA
erred in denying Perez-Camacho’s request to sua sponte
reopen proceedings, because the BIA committed no legal or
constitutional error in determining that the 1997 conviction
was not vacated due to a merits-based defect. See
Menendez-Gonzalez, 929 F.3d at 1116.
DENIED IN PART, DISMISSED IN PART.