Rafael Alvarez Navarro v. Jefferson Sessions, III ( 2018 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS OCT 31 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
RAFAEL ALVAREZ NAVARRO and No. 17-72758
NORMA ABRICA SANCHEZ,
Agency Nos. A096-061-021
Petitioners, A096-061-022
v.
MEMORANDUM*
JEFFERSON B. SESSIONS III, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted October 22, 2018**
Before: SILVERMAN, GRABER, and GOULD, Circuit Judges.
Rafael Alvarez Navarro and Norma Abrica Sanchez, natives and citizens of
Mexico, petition for review of the Board of Immigration Appeals’ (“BIA”) order
denying their motion to reopen removal proceedings. We have jurisdiction under 8
U.S.C. § 1252. We review for abuse of discretion the denial of a motion to reopen,
*
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).
Iturribarria v. INS, 321 F.3d 889, 894 (9th Cir. 2003), and we deny the petition for
review.
The BIA did not abuse its discretion in denying petitioners’ motion to
reopen based on ineffective assistance of counsel, where they filed the motion
nearly eleven years after the filing deadline, and failed to demonstrate the due
diligence necessary to warrant equitable tolling of the filing deadline. See 8 C.F.R.
§ 1003.2(c)(2); Avagyan v. Holder, 646 F.3d 672, 679 (9th Cir. 2011) (equitable
tolling is available to a petitioner who is prevented from timely filing a motion to
reopen due to deception, fraud, or error, as long as the petitioner exercises due
diligence in discovering such circumstances).
Further, the BIA did not abuse its discretion in denying petitioners’ motion
to reopen where petitioners failed to establish prima facie eligibility for asylum,
withholding of removal, or relief under the Convention Against Torture. See
Najmabadi, v. Holder, 597 F.3d 983, 986 (9th Cir. 2010) (the BIA can deny a
motion to reopen for failure to establish prima facie eligibility for the relief
sought).
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Finally, we reject petitioners’ contention that the BIA failed to properly
analyze their claims.
PETITION FOR REVIEW DENIED.
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