NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JAN 22 2025 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
BRUNO EDUARDO ZAVALA- No. 18-70616 RESENDIZ, Agency No. A073-384-148 Petitioner,
v. MEMORANDUM*
JAMES R. MCHENRY III, Acting Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration Appeals
Submitted December 4, 2024** San Francisco, California
Before COLLINS, VANDYKE, and MENDOZA, Circuit Judges.
Petitioner seeks review of a Board of Immigration Appeals (BIA) decision
dismissing his appeal of the immigration judge’s (IJ) denial of his number- and
time-barred motion to reopen. We have jurisdiction under 8 U.S.C. § 1252, and 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). deny in part and dismiss in part the petition.1
The court reviews the denial of a motion to reopen for an abuse of discretion.
See Ghahremani v. Gonzales, 498 F.3d 993, 997 (9th Cir. 2007). Under that
standard, the court must affirm the agency’s denial of reopening unless the decision
is “arbitrary, irrational or contrary to law.” Ontiveros-Lopez v. I.N.S., 213 F.3d 1121,
1124 (9th Cir. 2000) (citation omitted). Where, as here, “the BIA issues a Burbano
affirmance, we review the IJ’s decision as if it were the decision of the BIA.” Ahmed
v. Holder, 569 F.3d 1009, 1012 (9th Cir. 2009) (citing Abebe v. Gonzales, 432 F.3d
1037, 1040 (9th Cir. 2005) (en banc) and referring to Matter of Burbano, 20 I. & N.
Dec. 872 (BIA 1994)). We review questions of law de novo. Ruiz-Colmenares v.
Garland, 25 F.4th 742, 748 (9th Cir. 2022).
1. The BIA did not err by declining to reopen based on lack of notice. The
statute only requires that an alien receive written notice of his hearing, see 8 U.S.C.
§ 1229(a)(1), and there is no separate requirement to orally notify or explain the
alien’s obligation to appear. Petitioner does not dispute that he was personally
served with written notice of his hearing that also advised him of the statutory
obligation to keep the Immigration Court apprised in writing of any address changes.
See id. § 1229(a)(1)(F)(ii). Nor does he dispute that he failed to inform the
Immigration Court in writing of his new address, causing a subsequent notice
1 We also DENY Petitioner’s opposed motion to remand (Dkt. 11).
2 informing him of the time and date of his hearing to be sent to his last known address.
Instead, Petitioner argues that the Immigration Court knew of his correct address
based on what was communicated at the time of his release from detention and as
reflected on identification documents in the agency’s possession. But neither
qualifies as sufficient notice of an address change. See id. § 1229(a)(1)(F)(i)–(ii).
By failing to apprise the Immigration Court in writing of his new mailing address,
Petitioner was not entitled to reopening for lack of notice. We deny the petition in
this regard.
2. The BIA also did not abuse its discretion by declining to equitably toll the
motion to reopen deadline. Depending on the basis for the motion to reopen, a
petitioner has either 90 or 180 days from the date of the final removal order to file a
motion to reopen. Id. § 1229a(c)(7)(C)(i); id. § 1229a(b)(5)(C)(i). Petitioner filed
his second motion to reopen nearly two decades after the IJ’s entry of a final order
of removal. When a late motion to reopen is filed, the agency may still equitably
toll the statutory deadline if the petitioner satisfies two elements: “(1) that he has
been pursuing his rights diligently, and (2) that some extraordinary circumstance
stood in his way and prevented timely filing.” Bent v. Garland, 115 F.4th 934, 941
(9th Cir. 2024) (citation omitted); see also Lona v. Barr, 958 F.3d 1225, 1230 (9th
Cir. 2020). Petitioner has not established either element.
3 Starting with the first element, Petitioner has failed to show he diligently
pursued his rights. Our court “measure[s] [a petitioner’s] diligence from th[e] date”
on which “a reasonable person in [the petitioner]’s position [would be put] on notice
that something was wrong.” Avagyan v. Holder, 646 F.3d 672, 680 (9th Cir. 2011).
“[I]gnorance of the necessary information must have been caused by circumstances
beyond the [petitioner]’s control.” Valeriano v. Gonzales, 474 F.3d 669, 673 (9th
Cir. 2007) (internal quotation marks and footnote omitted). Petitioner was ordered
removed more than eighteen years prior to filing his second motion to reopen in
2017, six of which occurred after his relative visa was approved in 2011. And
Petitioner had previously used his “right to file one motion to reopen” in 2000. Dada
v. Mukasey, 554 U.S. 1, 4–5 (2008).
The evidence in the record does not show Petitioner “took reasonable steps”
to resolve his immigration status or discover any errors made by his prior counsel
who filed the first motion to reopen. See Avagyan, 646 F.3d at 679. Petitioner
simply believed his prior attorney was “taking care of [his] case,” despite
acknowledging that the “attorney rarely returned [his] calls.” The BIA reasonably
concluded he was not diligent in pursuing his rights.
As to the second element, Petitioner has not demonstrated that any ineffective
assistance of his former counsel is an exceptional circumstance warranting equitable
tolling. The in absentia removal order was the result of Petitioner’s own failure to
4 keep the Immigration Court apprised of his current mailing address—not his former
counsel’s failure. In fact, Petitioner’s prior counsel was hired in 2000 for the purpose
of filing the first motion to reopen. Even assuming there was ineffective assistance
in the submission of the first motion to reopen, prior counsel’s failure to argue the
agency should have known of Petitioner’s address change through alternative means
did not conceivably result in any prejudice because the in absentia removal order
was properly entered notwithstanding this argument. Petitioner has thus failed to
show that the BIA erred by not equitably tolling the filing deadline due to ineffective
assistance of counsel.
3. Petitioner has also not provided evidence showing changed country
conditions. “For the BIA to grant a motion to reopen based on changed country
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NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JAN 22 2025 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
BRUNO EDUARDO ZAVALA- No. 18-70616 RESENDIZ, Agency No. A073-384-148 Petitioner,
v. MEMORANDUM*
JAMES R. MCHENRY III, Acting Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration Appeals
Submitted December 4, 2024** San Francisco, California
Before COLLINS, VANDYKE, and MENDOZA, Circuit Judges.
Petitioner seeks review of a Board of Immigration Appeals (BIA) decision
dismissing his appeal of the immigration judge’s (IJ) denial of his number- and
time-barred motion to reopen. We have jurisdiction under 8 U.S.C. § 1252, and 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). deny in part and dismiss in part the petition.1
The court reviews the denial of a motion to reopen for an abuse of discretion.
See Ghahremani v. Gonzales, 498 F.3d 993, 997 (9th Cir. 2007). Under that
standard, the court must affirm the agency’s denial of reopening unless the decision
is “arbitrary, irrational or contrary to law.” Ontiveros-Lopez v. I.N.S., 213 F.3d 1121,
1124 (9th Cir. 2000) (citation omitted). Where, as here, “the BIA issues a Burbano
affirmance, we review the IJ’s decision as if it were the decision of the BIA.” Ahmed
v. Holder, 569 F.3d 1009, 1012 (9th Cir. 2009) (citing Abebe v. Gonzales, 432 F.3d
1037, 1040 (9th Cir. 2005) (en banc) and referring to Matter of Burbano, 20 I. & N.
Dec. 872 (BIA 1994)). We review questions of law de novo. Ruiz-Colmenares v.
Garland, 25 F.4th 742, 748 (9th Cir. 2022).
1. The BIA did not err by declining to reopen based on lack of notice. The
statute only requires that an alien receive written notice of his hearing, see 8 U.S.C.
§ 1229(a)(1), and there is no separate requirement to orally notify or explain the
alien’s obligation to appear. Petitioner does not dispute that he was personally
served with written notice of his hearing that also advised him of the statutory
obligation to keep the Immigration Court apprised in writing of any address changes.
See id. § 1229(a)(1)(F)(ii). Nor does he dispute that he failed to inform the
Immigration Court in writing of his new address, causing a subsequent notice
1 We also DENY Petitioner’s opposed motion to remand (Dkt. 11).
2 informing him of the time and date of his hearing to be sent to his last known address.
Instead, Petitioner argues that the Immigration Court knew of his correct address
based on what was communicated at the time of his release from detention and as
reflected on identification documents in the agency’s possession. But neither
qualifies as sufficient notice of an address change. See id. § 1229(a)(1)(F)(i)–(ii).
By failing to apprise the Immigration Court in writing of his new mailing address,
Petitioner was not entitled to reopening for lack of notice. We deny the petition in
this regard.
2. The BIA also did not abuse its discretion by declining to equitably toll the
motion to reopen deadline. Depending on the basis for the motion to reopen, a
petitioner has either 90 or 180 days from the date of the final removal order to file a
motion to reopen. Id. § 1229a(c)(7)(C)(i); id. § 1229a(b)(5)(C)(i). Petitioner filed
his second motion to reopen nearly two decades after the IJ’s entry of a final order
of removal. When a late motion to reopen is filed, the agency may still equitably
toll the statutory deadline if the petitioner satisfies two elements: “(1) that he has
been pursuing his rights diligently, and (2) that some extraordinary circumstance
stood in his way and prevented timely filing.” Bent v. Garland, 115 F.4th 934, 941
(9th Cir. 2024) (citation omitted); see also Lona v. Barr, 958 F.3d 1225, 1230 (9th
Cir. 2020). Petitioner has not established either element.
3 Starting with the first element, Petitioner has failed to show he diligently
pursued his rights. Our court “measure[s] [a petitioner’s] diligence from th[e] date”
on which “a reasonable person in [the petitioner]’s position [would be put] on notice
that something was wrong.” Avagyan v. Holder, 646 F.3d 672, 680 (9th Cir. 2011).
“[I]gnorance of the necessary information must have been caused by circumstances
beyond the [petitioner]’s control.” Valeriano v. Gonzales, 474 F.3d 669, 673 (9th
Cir. 2007) (internal quotation marks and footnote omitted). Petitioner was ordered
removed more than eighteen years prior to filing his second motion to reopen in
2017, six of which occurred after his relative visa was approved in 2011. And
Petitioner had previously used his “right to file one motion to reopen” in 2000. Dada
v. Mukasey, 554 U.S. 1, 4–5 (2008).
The evidence in the record does not show Petitioner “took reasonable steps”
to resolve his immigration status or discover any errors made by his prior counsel
who filed the first motion to reopen. See Avagyan, 646 F.3d at 679. Petitioner
simply believed his prior attorney was “taking care of [his] case,” despite
acknowledging that the “attorney rarely returned [his] calls.” The BIA reasonably
concluded he was not diligent in pursuing his rights.
As to the second element, Petitioner has not demonstrated that any ineffective
assistance of his former counsel is an exceptional circumstance warranting equitable
tolling. The in absentia removal order was the result of Petitioner’s own failure to
4 keep the Immigration Court apprised of his current mailing address—not his former
counsel’s failure. In fact, Petitioner’s prior counsel was hired in 2000 for the purpose
of filing the first motion to reopen. Even assuming there was ineffective assistance
in the submission of the first motion to reopen, prior counsel’s failure to argue the
agency should have known of Petitioner’s address change through alternative means
did not conceivably result in any prejudice because the in absentia removal order
was properly entered notwithstanding this argument. Petitioner has thus failed to
show that the BIA erred by not equitably tolling the filing deadline due to ineffective
assistance of counsel.
3. Petitioner has also not provided evidence showing changed country
conditions. “For the BIA to grant a motion to reopen based on changed country
conditions,” an alien must “clear” several “hurdles,” including producing previously
unavailable evidence that country conditions have changed. Rodriguez v. Garland,
990 F.3d 1205, 1209 (9th Cir. 2021) (citation omitted). But Petitioner offers no such
evidence. His evidence pertains only to conditions in Mexico from 2014 to 2017—
long after the 1999 removal order. This period does not establish a comparative
baseline from which to assess whether Mexico’s conditions have indeed worsened.
Cf. Sumolang v. Holder, 723 F.3d 1080, 1083 (9th Cir. 2013); He v. Gonzales, 501
F.3d 1128, 1132–33 (9th Cir. 2007). Because Petitioner failed to produce
comparative evidence showing a worsening of country conditions in Mexico, the
5 BIA’s denial of Petitioner’s motion to reopen was not arbitrary, irrational, or
contrary to law. We likewise deny the petition in this respect.
4. The BIA also maintains sua sponte authority to reopen proceedings when it
is persuaded that a “situation is truly exceptional.” Lona, 958 F.3d at 1230 (citations
omitted). But even in an exceptional circumstance, the BIA is not required to take
sua sponte action. Id. at 1234–35. The BIA’s discretionary decision not to reopen
sua sponte is unreviewable unless it was based on a “legal or constitutional error.”
Bonilla v. Lynch, 840 F.3d 575, 588 (9th Cir. 2016). No legal or constitutional error
is evident in the record before us. We therefore lack jurisdiction to review the BIA’s
discretionary decision not to sua sponte reopen Petitioner’s removal proceedings,
and we dismiss the petition in this regard.
PETITION DENIED IN PART AND DISMISSED IN PART.