Abel Ordonez Mendoza v. Merrick Garland

Opinion

FILED NOT FOR PUBLICATION AUG 11 2022 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

ABEL AMILCAR ORDONEZ No. 20-72722 MENDOZA, Agency No. A073-916-751 Petitioner,

v. MEMORANDUM*

MERRICK B. GARLAND, Attorney General,

Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals

Submitted August 9, 2022** Anchorage, Alaska

Before: S.R. THOMAS, McKEOWN, and CLIFTON, Circuit Judges.

Petitioner Abel Amilcar Ordonez Mendoza petitions for review of the Board

of Immigration Appeals’ (“BIA”) order adopting the decision of an Immigration

Judge (“IJ”) denying his motion to reopen an in absentia order of deportation. We

* 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). have jurisdiction under 8 U.S.C. § 1252. We deny the petition. Because the

parties are familiar with the facts, we need not recount them here.

I

The BIA did not abuse its discretion in denying the motion to reopen. The

BIA reasonably concluded that, even if equitable tolling applied, Ordonez

Mendoza’s motion to reopen was not timely filed because he waited, at least, ten

years after discovering that counsel had deceived him to file it. See Bonilla v.

Lynch, 840 F.3d 575, 583 (9th Cir. 2016) (waiting six years before seeking further

legal advice because a prior attorney had given unspecific legal advice to wait “a

few years” before seeking immigration relief did not show the diligence necessary

for equitable tolling).

Contrary to Ordonez Mendoza’s assertion, the BIA did not impermissibly

reject his declaration as noncredible. The BIA relied on the facts in Ordonez

Mendoza’s declaration when it concluded that he was on notice of counsel’s

deception in 2004 when he was deported twice, or at the latest, 2009 when he

discovered that counsel had closed his law practice without contacting him to

return his file. These facts formed the basis for the BIA’s conclusion that Ordonez

Mendoza was not diligent.

2 Nor did the BIA err in failing to specifically discuss the role that Ordonez

Mendoza’s roommate played in the matter. The BIA is not required to discuss

every fact submitted in a declaration. Rather, it must “indicate with specificity that

it heard and considered petitioner’s claims.” Maravilla Maravilla v. Ashcroft, 381

F.3d 855, 858 (9th Cir. 2004) (per curiam) (citation omitted). Because the BIA

determined that Ordonez Mendoza’s attempts to remedy the situation after 2009

were largely inadequate, it was not necessary for the BIA to discuss Ordonez

Mendoza’s attempts to find his immigration records prior to hiring new counsel in

2018.

II

We decline to address Ordonez Mendoza’s contention that he suffered

ineffective assistance of counsel, because the BIA did not reject it. Rather, the BIA

found that any claim of ineffective assistance did not equitably toll the 180-day

time period under 8 C.F.R. § 1003.23(b)(4)(iii)(A)(1) to file a motion to reopen

because Ordonez Mendoza did not demonstrate due diligence. See Recinos de

Leon v. Gonzales, 400 F.3d 1185, 1189 (9th Cir. 2005) (noting that appeals panels

“may affirm the [BIA] only on grounds set forth in the opinion under review”)

(citation omitted).

PETITION DENIED