Hector Gutierrez-Moreno v. William Barr

• Court: Court of Appeals for the Ninth Circuit
• Decided: November 4, 2020
• Docket: 18-70535
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS NOV 4 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

HECTOR SALVADOR GUTIERREZ- No. 18-70535 MORENO, 18-72852

Petitioner, Agency No. A075-494-448

v. MEMORANDUM* WILLIAM P. BARR, Attorney General,

Respondent.

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

Submitted October 20, 2020** San Francisco, California

Before: THOMAS, Chief Judge, and KELLY*** and MILLER, Circuit Judges.

Hector Salvador Gutierrez-Moreno, a native and citizen of Honduras,

petitions for review of an order of the Board of Immigration Appeals denying his

* 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 Paul J. Kelly, Jr., United States Circuit Judge for the U.S. Court of Appeals for the Tenth Circuit, sitting by designation. motion to reopen removal proceedings and an order denying his subsequent motion

to reconsider. We have jurisdiction under 8 U.S.C. § 1252(a)(1). Mata v. Lynch,

576 U.S. 143, 147–48 (2015). We review for abuse of discretion. Cano-Merida v.

INS, 311 F.3d 960, 964 (9th Cir. 2002). We deny both petitions.

1. Gutierrez-Moreno argues that the Board abused its discretion when it

denied his motion to reopen even though the government did not file a brief

opposing it. The Board’s regulations do not require it to grant an unopposed

motion. See 8 C.F.R. § 1003.2(g)(3). To the contrary, the Board’s Practice Manual

states that “the opposing party’s failure to oppose a motion . . . will not necessarily

result in a grant of that motion.” U.S. Dep’t of Justice, Board of Immigration

Appeals Practice Manual, ch. 5.11 (2017). The Board had no obligation to grant

the motion simply because it was unopposed. See Limsico v. INS, 951 F.2d 210,

213 (9th Cir. 1991).

Gutierrez-Moreno’s reliance on Konstantinova v. INS, 195 F.3d 528 (9th

Cir. 1999), is misplaced. There, we held that the Board’s denial of an unopposed

motion to remand because of procedural error could constitute an abuse of

discretion where the Board had discretion to waive the error and had previously

done so in almost “identical” circumstances. Id. at 530–31. Here, by contrast, the

Board lacks discretion. By statute, motions to reopen must be filed “within 90 days

of the date of entry of a final administrative order of removal.” 8 U.S.C.

2 § 1229a(c)(7)(C)(i). Gutierrez-Moreno’s motion was filed more than four years

after his final order of removal. Unlike the rule at issue in Konstantinova, the

statutory time bar is mandatory.

2. Gutierrez-Moreno next argues that the Board abused its discretion

when it found that he failed to adduce evidence of a material change in country

conditions in Honduras. In particular, he argues that the appointment of Juan

Carlos Bonilla Valladares as chief of the Honduran national police constitutes a

material change in country conditions because of Valladares’s role in leading

police killings of LGBT persons. If Gutierrez-Moreno is right, then his motion to

reopen was not time-barred. See 8 U.S.C. § 1229a(c)(7)(C)(ii).

The Board found otherwise. It explained that Gutierrez-Moreno had not

shown that Valladares remained police chief at the time of his motion, that

Valladares’s “appointment worsened the frequency or severity of human rights

violations committed by Honduran police, including extrajudicial killings,” or that

such killings had grown more common since his hearing. Those findings were

supported by substantial evidence. See 8 U.S.C. § 1252(b)(4)(B). While the record

showed that Valladares became chief of police in 2012, it also showed that by the

end of 2013, he had been replaced. The record established that extrajudicial police

killings and torture, including of LGBT persons, had occurred before Gutierrez-

Moreno’s hearing. Finally, the record showed that the Honduran government had

3 taken steps to address criminality among the police. Gutierrez-Moreno argues that

he is entitled to have reasonable inferences drawn in his favor on the merits of his

asylum claim, but the Board was not required to draw such inferences in deciding

whether to deny his motion on the “independent ground[]” that he had not

“introduced previously unavailable, material [country conditions] evidence.” INS v.

Abudu, 485 U.S. 94, 104, 106–10 (1988).

3. Finally, Gutierrez-Moreno argues that he is entitled to equitable

tolling due to ineffective assistance of counsel. He alleges that his former counsel

was deficient for two reasons: (1) She failed to “identify asylum and withholding”

of removal as potential avenues of relief, and (2) she failed to “seek[] reopening

when [his] immigrant visa became current in September of 2016” to apply for

adjustment of status. To qualify for equitable tolling and successfully reopen

proceedings due to ineffective assistance of counsel, a petitioner must show that he

was prevented from timely filing by counsel’s ineffectiveness; that he exercised

due diligence in discovering counsel’s error; that he complied with Matter of

Lozada, 19 I. & N. Dec. 637 (B.I.A. 1988); and that he suffered prejudice. Singh v.

Holder, 658 F.3d 879, 884–85 (9th Cir. 2011).

On the first claim, the Board found that Gutierrez-Moreno had not

substantially complied with Lozada and had not demonstrated due diligence in

“attempting to discover or correct” his attorney’s alleged error. On reconsideration,

4 Gutierrez-Moreno did not “meaningfully challenge[]” or “rebut[]” the Board’s due

diligence finding. Before this court, he does not explain how he acted diligently or

dispute the Board’s finding that he did not take “any independent action to

investigate his case prior to filing [his] motion, such as researching whether relief

might be available to aliens who are afraid to return to their home countries.”

Because the Board’s unrebutted due-diligence finding is dispositive, we need not

decide whether it abused its discretion in finding that Gutierrez-Moreno failed to

substantially comply with Lozada.

On the second claim, the Board found that Gutierrez-Moreno was not

prejudiced because even if counsel had moved to reopen when his visa became

current, his motion still would have been untimely. Gutierrez-Moreno has waived

this issue because he did not challenge the Board’s prejudice determination in his

opening brief. Ghahremani v. Gonzales, 498 F.3d 993, 997–98 (9th Cir. 2007).

PETITIONS DENIED.