Enrique Tenorio v. Merrick Garland

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS FEB 18 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ENRIQUE CHRISTIAN TENORIO, No. 19-71321
Petitioner, Agency No. A090-489-725
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted February 14, 2022**
Pasadena, California
Before: BRESS and BUMATAY, Circuit Judges, and GLEASON,*** District
Judge.
Enrique Tenorio, a citizen of Mexico, seeks review of a Board of Immigration
Appeals (BIA) decision denying his untimely motion to reopen his immigration
*
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 Sharon L. Gleason, Chief United States District Judge
for the District of Alaska, sitting by designation.
proceedings. We review the denial of a motion to reopen for abuse of discretion and
may grant relief only if the BIA’s decision was “arbitrary, irrational, or contrary to
law.” Agonafer v. Sessions, 859 F.3d 1198, 1203 (9th Cir. 2017) (quoting Singh v.
INS, 295 F.3d 1037, 1039 (9th Cir. 2002)). When, as here, the BIA adopts the
decision of the Immigration Judge (IJ) as the BIA’s final decision, we consider the
IJ’s decision as well. Ren v. Holder, 648 F.3d 1079, 1083 (9th Cir. 2011). We have
jurisdiction under 8 U.S.C. § 1252 and deny the petition.
1. The BIA did not abuse its discretion in denying equitable tolling for
Tenorio’s motion, which was untimely by over nineteen years. See 8 C.F.R.
§ 1003.23(b)(1). To show that he was entitled to equitable tolling, Tenorio had to
show (1) “a diligent pursuit of [his] rights,” and (2) “that some extraordinary
circumstance stood in [his] way and prevented timely filing.” Lona v. Barr, 958
F.3d 1225, 1231–32 (9th Cir. 2020) (quotations omitted).
The IJ and BIA could reasonably conclude that Tenorio did not make this
showing. “Equitable tolling is available where despite all due diligence, the party
invoking the [doctrine] is unable to obtain vital information bearing on the existence
of the claim. The party’s ignorance of the necessary information must have been
caused by circumstances beyond the party’s control.” Ghahremani v. Gonzales, 498
F.3d 993, 999 (9th Cir. 2007) (quotations and citations omitted).
Even if, as Tenorio claims, our decisions in Medina-Lara v. Holder, 771 F.3d
2
1106 (9th Cir. 2014), and United States v. Aguilera-Rios, 769 F.3d 626 (9th Cir.
2014), invalidated the original basis for his removal, which can constitute an
extraordinary circumstance warranting equitable tolling, see Lona, 958 F.3d at 1230,
Tenorio did not file his motion until approximately four years after we issued those
decisions. Tenorio has not explained how circumstances beyond his control
prevented him from learning of the claimed basis for his motion to reopen, especially
when at no point after the issuance of his removal order did Tenorio consult with an
attorney or take any other steps to investigate the possibility of reopening his
immigration proceedings. And contrary to Tenorio’s argument in his petition, due
diligence is not required only after the petitioner subjectively learns of the alleged
extraordinary circumstance. See Avagyan v. Holder, 646 F.3d 672, 680–81 (9th Cir.
2011). Thus, it was not an abuse of discretion for the IJ and the BIA to deny
equitable tolling.1
2. The BIA did not violate Tenorio’s due process rights in adjudicating
his motion to reopen. In support of this argument, Tenorio points only to the fact
that the BIA’s order had an incorrect header, describing his application as one for
“Asylum; withholding of removal; Convention Against Torture” instead of a
“Motion to Reopen.” But other BIA documents used the correct header. Thus, the
1
To the extent Tenorio challenges the agency’s denial of sua sponte reopening, he
does not raise any legal or constitutional error, and we thus lack jurisdiction to
consider his argument. Ekimian v. INS, 303 F.3d 1153, 1159 (9th Cir. 2002).
3
record does not support Tenorio’s claim that the BIA gave inadequate consideration
to his motion or that this technical error prejudiced him. See Zamorano v. Garland,
2 F.4th 1213, 1228 (9th Cir. 2021) (articulating the prejudice requirement).
PETITION DENIED.
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