Bernabe Perez-Gonzalez v. Merrick Garland ( 2022 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS APR 18 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
BERNABE PEREZ-GONZALEZ, AKA No. 17-70755
Carlos Patino-Velez, AKA Bernabe Perez-
Gonzale, AKA Bernabe Perez-Gonzales, Agency No. A200-878-219
Petitioner,
MEMORANDUM*
v.
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted April 14, 2022**
Seattle, Washington
Before: HAWKINS and FORREST, Circuit Judges, and RESTANI,*** Judge.
*
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 Jane A. Restani, Judge for the United States Court of
International Trade, sitting by designation.
Bernabe Perez-Gonzalez petitions for review of a decision by the Board of
Immigration Appeals (“BIA”) denying his motion to reopen his removal
proceedings. We have jurisdiction under 8 U.S.C. § 1252(a)(1). We review the
BIA’s denial of a motion to reopen for abuse of discretion, and we review de novo
purely legal issues, including violations of due process and ineffective assistance of
counsel. Cuenca v. Barr, 956 F.3d 1079, 1084 (9th Cir. 2020). We deny the petition.
The BIA did not abuse its discretion by denying the motion as untimely.
Perez-Gonzalez does not dispute that he filed his motion roughly two years after his
final order of removal and well past the ninety-day deadline for filing a motion to
reopen. See 8 U.S.C. § 1229a(c)(7)(C)(i).
Nor did Perez-Gonzalez establish grounds for equitable tolling. See Avagyan
v. Holder, 646 F.3d 672, 679 (9th Cir. 2011) (equitable tolling of the deadline for a
motion to reopen may apply when petitioner is prevented from filing as a result of
“deception, fraud, or error”). As the BIA concluded, Perez-Gonzalez has not
demonstrated plausible claims for relief from removal, including asylum,
withholding of removal, or cancellation of removal. See Ramirez-Munoz v. Lynch,
816 F.3d 1226, 1229–30 (9th Cir. 2016) (rejecting asylum and withholding claims
predicated on alleged membership in class of “imputed wealthy Americans”);
Fernandez v. Mukasey, 520 F.3d 965, 966 (9th Cir. 2008) (“With regard to hardship
to a child [for purposes of cancellation of removal], petitioners generally must
2 17-70755
demonstrate that they have a qualifying child with very serious health issues, or
compelling special needs in school.” (internal quotation marks and citation
omitted)). Consequently, he has not established the requisite prejudice to sustain his
claim of ineffective assistance of counsel or toll the limitations period. See Lin v.
Ashcroft, 377 F.3d 1014, 1027 (9th Cir. 2004). Because the BIA permissibly
concluded that Perez-Gonzalez did not demonstrate a plausible claim for
cancellation of removal, any presumption of prejudice arising from counsel’s failure
to file a brief in Perez-Gonzalez’s initial appeal to the BIA was rebutted. See Singh
v. Ashcroft, 367 F.3d 1182, 1189 (9th Cir. 2004).
Contrary to Perez-Gonzalez’s argument, the BIA’s decision indicates that it
considered the country conditions evidence submitted with Perez-Gonzalez’s
motion but concluded that the evidence did not demonstrate a material change. See
8 U.S.C. § 1229a(c)(7)(C)(ii). The record supports the BIA’s conclusion, and the
BIA’s denial of the motion was not an abuse of discretion. See Ramirez-Munoz, 816
F.3d at 1229.
PETITION DENIED.
3 17-70755