Esmeralda Munoz v. William Barr

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 11, 2020
• Docket: 17-71446
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 11 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

ESMERALDA MARISOL MUNOZ, AKA No. 17-71446 Esmeralda Munoz-Flores, Agency No. A099-828-392 Petitioner,

v. MEMORANDUM*

WILLIAM P. BARR, Attorney General,

Respondent.

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

Submitted March 2, 2020** Pasadena, California

Before: HURWITZ and FRIEDLAND, Circuit Judges, and KORMAN,*** District Judge.

Esmeralda Marisol Munoz petitions for review of a decision of the Board of

Immigration Appeals (“BIA”) denying her motion to reconsider its denial of her

* 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 Edward R. Korman, United States District Judge for the Eastern District of New York, sitting by designation. motion to reopen her removal proceedings. We have jurisdiction under 8 U.S.C.

§ 1252. We review the BIA’s denial of a motion to reconsider for abuse of discretion,

although de novo review applies to the BIA’s determination of purely legal

questions. Morales Apolinar v. Mukasey, 514 F.3d 893, 895 (9th Cir. 2008). We

deny the petition for review.

Munoz’s motion to reopen, which was based on her former counsel’s alleged

ineffectiveness, was filed more than four years after the BIA dismissed her appeal,

long after the applicable 90-day deadline. See 8 C.F.R. § 1003.2(c)(2). The BIA

denied Munoz’s motion as untimely, holding that it was not filed with sufficient

diligence to invoke the doctrine of equitable tolling, which applies “when a litigant

has pursued his rights diligently but some extraordinary circumstance prevents him

from” meeting a deadline. Lozano v. Montoya Alvarez, 572 U.S. 1, 10 (2014).

The BIA reasoned that, since Munoz had become “aware of the specific

claimed error” by her former counsel by September 2, 2015, and Munoz had secured

new counsel by December 28, 2015, her failure to file her motion to reopen until

September 8, 2016 showed a lack of due diligence. The BIA rejected Munoz’s

argument that she was justified in postponing her filing while she waited for her

former counsel’s response to her allegations against him, because there was no

procedural requirement that Munoz receive her former counsel’s response prior to

filing the motion; she was only required, at most, to have afforded her former counsel

2 an opportunity to respond. Such an opportunity, as we have held, only requires “a

sufficient time interval between the notice [to the former counsel] and the motion so

that counsel can respond.” Correa-Rivera v. Holder, 706 F.3d 1128, 1131 (9th Cir.

2013).

Munoz’s motion to reconsider offered two arguments against the BIA’s

reasoning, neither of which were meritorious. First, quoting Correa-Rivera, Munoz

argued that “it is irrational and arbitrary, even bizarre, for the BIA to dismiss a

motion seeking relief from a late filing when petitioner includes a declaration from

the lawyer admitting responsibility and absolving the client of any culpability for the

delay.” Id. at 1132. However, the BIA did not punish Munoz for any delay that was

former counsel’s fault. Instead, it only held Munoz accountable for her delay after

she allegedly learned of her former counsel’s ineffectiveness, and thus could no

longer reasonably rely on him.

Second, Munoz argued that she needed to wait for her former counsel’s

response to her allegations of ineffectiveness before filing her motion to reopen, “as

it was unclear the extent of his representation and the extent of the ineffective

assistance [he had] provided.” But Munoz had already executed an affidavit in

September 2015 declaring that, having “tricked” her into believing he was diligently

representing her, her former counsel had failed to file “the proper appeal in [her]

case,” which had given the BIA “no choice but to dismiss [her] appeal.” Under these

3 circumstances, former counsel’s response was not vital to her motion to reopen, and

we have held that “diligence in attempting to obtain nonvital information . . . is not

‘diligence’ within the meaning of our equitable tolling jurisprudence.” Valeriano v.

Gonzales, 474 F.3d 669, 673 (9th Cir. 2007).

Munoz therefore failed to show that the BIA erred in denying her motion to

reopen, and the BIA’s denial of her motion to reconsider was accordingly not an

abuse of discretion.

PETITION DENIED.