Pablo Sebastian v. Garland ( 2023 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 6 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
LOPEZ PABLO SEBASTIAN, No. 22-1792
Agency No.
Petitioner, A072-989-707
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted December 4, 2023**
Pasadena, California
Before: CALLAHAN, R. NELSON, and BADE, Circuit Judges.
Lopez Pablo Sebastian, a native and citizen of Guatemala, petitions for
review of the Board of Immigration Appeals’ (BIA) denial of his motion to reopen
his immigration proceedings. We have jurisdiction under 8 U.S.C. § 1252(a)(1),
*
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).
and we deny the petition.
1. The BIA did not abuse its discretion in declining to apply equitable tolling to
the ninety-day period to file a motion to reopen. See 8 U.S.C. § 1229a(c)(7)(C)(i).
To obtain equitable tolling based on ineffective assistance of counsel, Pablo
Sebastian was required to show, among other things, “that he demonstrated due
diligence in discovering counsel’s fraud or error.” Singh v. Holder, 658 F.3d 879,
884 (9th Cir. 2011) (citation omitted). Pablo Sebastian filed his motion over one
year after the BIA affirmed the order of removal against him. His motion did not
explain why he waited more than ninety days to move to reopen his case, and he
offered no description of when he suspected his lawyers’ errors or what steps he
took to investigate those errors. See Avagyan v. Holder, 646 F.3d 672, 679 (9th
Cir. 2011). It was not an abuse of discretion to conclude that Pablo Sebastian
failed to meet his burden of showing that he exercised due diligence. See Singh v.
Gonzales, 491 F.3d 1090, 1096–97 (9th Cir. 2007) (concluding the BIA did not
abuse its discretion in determining that a months-long delay in hiring new counsel
was a failure to exercise due diligence).
We decline to consider Pablo Sebastian’s newly raised argument that he
exercised reasonable diligence considering his nationality, education status, and
lack of legal training, because those arguments were not exhausted before the BIA.
See 8 U.S.C. § 1252(d)(1); Szonyi v. Whitaker, 915 F.3d 1228, 1233 (9th Cir.
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2019) (“A petitioner’s failure to raise an argument before the BIA generally
constitutes a failure to exhaust.” (citation omitted)).
2. The BIA did not abuse its discretion in concluding that, even if the motion to
reopen were timely, Pablo Sebastian failed to show prejudicial ineffective
assistance of counsel. The BIA reasonably concluded that Pablo Sebastian was not
prejudiced by the lack of a Kanjobal interpreter when Pablo Sebastian previously
indicated that he is fluent in Spanish. Moreover, the Immigration Judge (IJ) stated
that the outcome of the proceedings, including the adverse credibility
determination, was not dependent on any language difficulty. Pablo Sebastian
therefore failed to demonstrate the prejudice necessary to establish an ineffective
assistance of counsel claim. See Martinez-Hernandez v. Holder, 778 F.3d 1086,
1088 (9th Cir. 2015).
3. Pablo Sebastian’s arguments challenging the BIA’s 2019 affirmance of the
IJ’s decision denying his applications for asylum, withholding of removal, and
CAT protection are untimely and not properly before this court, so we decline to
consider them. See 8 U.S.C. § 1252(b)(1). We also decline to consider Pablo
Sebastian’s argument that counsel was deficient in failing to obtain the I-213 form
from the Department of Homeland Security because that argument was never
raised to the BIA. See id. § 1252(d)(1). And Pablo Sebastian did not challenge in
his opening brief the BIA’s denial of his motion to reopen sua sponte, so that
3 22-1792
argument is forfeited. See In re Apple Inc. Device Performance Litig., 50 F.4th
769, 782 n.9 (9th Cir. 2022).
PETITION DENIED.
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