Alejandro Lizalde Rodriguez v. William Barr ( 2020 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUL 23 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ALEJANDRO LIZALDE RODRIGUEZ; No. 19-71180
MARISELA LIZALDE,
Agency Nos. A075-668-891
Petitioners, A075-668-892
v.
MEMORANDUM*
WILLIAM P. BARR, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted July 14, 2020**
Before: CANBY, FRIEDLAND, and R. NELSON, Circuit Judges.
Alejandro Lizalde Rodriguez and Marisela Lizalde, natives and citizens of
Mexico, petition for review of the Board of Immigration Appeals’ (“BIA”) order
denying their motion to reopen. We have jurisdiction under 8 U.S.C. § 1252. We
review for abuse of discretion the denial of a motion to reopen and review de novo
*
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).
questions of law, including claims of due process violations. Iturribarria v. INS,
321 F.3d 889, 894 (9th Cir. 2003). We deny the petition for review.
The BIA did not abuse its discretion in denying petitioners’ untimely motion
to reopen for failing to demonstrate they acted with the due diligence required for
equitable tolling, where they contacted counsel only annually for approximately 12
years and only sought a second opinion upon the election of President Trump. See
8 U.S.C. § 1229a(c)(7)(C)(i); Avagyan v. Holder, 646 F.3d 672, 679 (9th Cir.
2011) (due diligence depends on when a reasonable person would suspect the
attorney’s misconduct and whether the petitioner took reasonable steps to
investigate prior counsel’s suspected error, or, if petitioner was ignorant of
counsel’s shortcomings, made reasonable efforts to pursue relief).
Petitioners’ contentions that the BIA erred and violated due process by
utilizing the incorrect legal standard, ignoring or misstating evidence, relying on
speculation, and failing to provide sufficient reasoning are without merit. See Lata
v. INS, 204 F.3d 1241, 1246 (9th Cir. 2000) (requiring error to prevail on a due
process claim); Najmabadi v. Holder, 597 F.3d 983, 990 (9th Cir. 2010) (“What is
required is merely that [the BIA] consider the issues raised, and announce its
decision in terms sufficient to enable a reviewing court to perceive that it has heard
and thought and not merely reacted.” (citation omitted)).
PETITION FOR REVIEW DENIED.
2 19-71180