Castro Fierro v. Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: October 24, 2023
• Docket: 22-1794
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS OCT 24 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

ALBERTO CASTRO No. 22-1794 FIERRO; CAROLINA CASTRO, Agency Nos. A075-697-365 Petitioners, A075-697-366 v. MEMORANDUM* MERRICK B. GARLAND, Attorney General,

Respondent.

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

Submitted October 20, 2023** Portland, Oregon

Before: GILMAN, KOH, and SUNG, Circuit Judges.***

Alberto Castro Fierro and Carolina Castro, natives and citizens of Mexico,

* 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 Ronald Lee Gilman, United States Circuit Judge for the Court of Appeals, 6th Circuit, sitting by designation. petition for review of the Board of Immigration Appeals’ (BIA) order denying

their fifth motion to reopen removal proceedings on account of ineffective

assistance of counsel. Our jurisdiction is governed by 8 U.S.C. § 1252. We review

the BIA’s denial of a motion to reopen under the abuse of discretion standard. See

Avagyan v. Holder, 646 F.3d 672, 674 (9th Cir. 2011). We deny in part and dismiss

in part the petition for review.

The BIA did not abuse its discretion in denying Petitioners’ fifth motion to

reopen as number-barred and untimely. See 8 U.S.C. § 1229a(c)(7)(A),

(c)(7)(C)(i). The BIA did not err in concluding that Petitioners failed to establish

the due diligence required to warrant equitable tolling of the motion’s deadlines.

Avagyan, 646 F.3d at 679 (outlining factors relevant to the due diligence inquiry).

Petitioners provided no explanation in their motion to reopen or on appeal as to

what “reasonable steps” they took “to investigate the suspected fraud or error” on

the part of their original counsel or what “reasonable efforts” they made “to pursue

relief,” despite their alleged financial difficulties, between the 2006 order of

removal and their 2021 motion to reopen. See id. Accordingly, Petitioners cannot

demonstrate that the BIA’s conclusion that Petitioners should have raised their

ineffective assistance of counsel claim earlier in the proceedings was “arbitrary,

irrational, or contrary to law.” See Hernandez-Ortiz v. Garland, 32 F.4th 794, 800

2 22-1794 (9th Cir. 2022).1

Petitioners do not assert that the BIA committed “legal or constitutional

error” in denying sua sponte reopening. We thus lack jurisdiction to review the

BIA’s determination not to reopen proceedings sua sponte. See Bonilla v. Lynch,

840 F.3d 575, 588 (9th Cir. 2016).2

PETITION FOR REVIEW DENIED in part; DISMISSED in part.

1 Because the untimeliness of the motion to reopen is dispositive, we need not reach Petitioners’ remaining arguments. To the extent that Petitioners argue that their family circumstances had changed, this argument is deemed abandoned. See Martinez-Serrano v. INS, 94 F.3d 1256, 1259 (9th Cir. 1996) (“Issues raised in a brief that are not supported by argument are deemed abandoned.”). 2 The temporary stay of removal (Dkt. 12) remains in place until issuance of the mandate.

3 22-1794