Eduardo Castaneda Maldonado v. Merrick Garland ( 2022 )


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  •                               NOT FOR PUBLICATION                        FILED
    UNITED STATES COURT OF APPEALS                        SEP 1 2022
    MOLLY C. DWYER, CLERK
    U.S. COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    EDUARDO CASTANEDA MALDONADO, No.                       20-70230
    Petitioner,                     Agency No. A075-690-441
    v.
    MEMORANDUM*
    MERRICK B. GARLAND, Attorney
    General,
    Respondent.
    On Petition for Review of an Order of the
    Board of Immigration Appeals
    Submitted July 11, 2022**
    Pasadena, California
    Before: BENNETT and SUNG, Circuit Judges, and FOOTE,*** District Judge.
    Eduardo Castaneda Maldonado, a citizen of Mexico, petitions for review of
    the Board of Immigration Appeals (BIA) decision denying his motion to reopen as
    *
    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 Elizabeth E. Foote, United States District Judge for the
    Western District of Louisiana, sitting by designation.
    untimely. Petitioner filed the motion to reopen alleging ineffective assistance of
    counsel and requesting equitable tolling. The BIA declined to equitably toll the
    time limitation and held (1) that Petitioner did not exercise due diligence in
    discovering his non-attorney’s fraud and (2) that Petitioner was not prejudiced by
    his non-attorney’s fraud because he had no plausible grounds for relief. We review
    the BIA’s denial of a motion to reopen for abuse of discretion. Sanchez Rosales v.
    Barr, 
    980 F.3d 716
    , 719 (9th Cir. 2020). We have jurisdiction under 
    8 U.S.C. § 1252
    , and we deny the petition.
    1. The BIA did not abuse its discretion when it found that Petitioner did not
    exercise due diligence in discovering his non-attorney’s fraud. The record indicates
    that there was a fourteen-year gap between the time the Petitioner last attempted to
    contact his non-attorney in 2003, and when he filed a FOIA request for information
    on his case in 2017. While we are sympathetic to the fact that Petitioner was the
    victim of fraud and the unauthorized practice of law in his immigration
    proceedings, Petitioner had reason to believe that he was the victim of fraud when
    the non-attorney ceased responding to his calls, and when he found the non-
    attorney’s office closed without notice of a change of address in 2003. The BIA
    reasonably cited to Petitioner’s inaction from 2003 to 2017 as a basis for finding
    that he did not act with the requisite due diligence. Singh v. Holder, 
    658 F.3d 879
    ,
    884 (9th Cir. 2011).
    2
    2. Because we affirm the BIA’s denial of the motion to reopen on the ground
    of due diligence, we do not reach the issue of whether the BIA abused its
    discretion when it found that Petitioner was not prejudiced by his non-attorney’s
    failure to file a timely appeal.1
    3. To the extent that Petitioner challenges the BIA’s refusal to exercise its
    sua sponte reopening authority, we lack jurisdiction over such argument because
    Petitioner fails to argue that the BIA “misconstrue[d] the parameters of its sua
    sponte authority based on legal or constitutional error.” Lona v. Barr, 
    958 F.3d 1225
    , 1237 (9th Cir. 2020).
    The petition is DENIED.
    1
    We note that Petitioner is now eligible to apply for adjustment of status under §
    245(a) based on an approved I-130 through one of his U.S. citizen sons.
    3
    

Document Info

Docket Number: 20-70230

Filed Date: 9/1/2022

Precedential Status: Non-Precedential

Modified Date: 9/1/2022