Maria Peralta Garcia v. William Barr ( 2020 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS FEB 6 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARIA CLAUDIA PERALTA GARCIA, No. 17-73201
Petitioner, Agency No. A097-354-895
v.
MEMORANDUM*
WILLIAM P. BARR, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted February 4, 2020**
Before: FERNANDEZ, SILVERMAN, and TALLMAN, Circuit Judges.
Maria Claudia Peralta Garcia, a native and citizen of Mexico, petitions for
review of the Board of Immigration Appeals’ (“BIA”) order denying her motion to
reopen removal proceedings based on ineffective assistance of counsel. We have
jurisdiction under 8 U.S.C. § 1252. We review for abuse of discretion the denial of
a motion to reopen. Mohammed v. Gonzales, 400 F.3d 785, 791 (9th Cir. 2005).
*
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).
We deny the petition for review.
The BIA did not abuse its discretion in denying Peralta Garcia’s motion to
reopen as untimely where her motion was filed more than 11 years after the BIA’s
December 28, 2005, order dismissing her appeal, see 8 C.F.R. § 1003.2(c)(2), and
Peralta Garcia failed to establish the due diligence required to warrant tolling of the
filing deadline, see Avagyan v. Holder, 646 F.3d 672, 674 (9th Cir. 2011)
(equitable tolling is available to a petitioner who is prevented from filing because
of deception, fraud or error, and exercised due diligence in discovering such
circumstances). The record does not support her contention that the BIA expected
her to comply with the threshold requirements of Matter of Lozada, 19 I. & N.
Dec. 637 (BIA 1988), for all the attorneys she consulted.
Because untimeliness is dispositive, we do not reach Peralta Garcia’s
remaining contentions regarding ineffective assistance, prejudice, and hardship.
PETITION FOR REVIEW DENIED.
2 17-73201