Maria Valles Sanchez v. Matthew Whitaker

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JAN 15 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

MARIA JOSEFINA VALLES SANCHEZ; No. 11-73253 FERNANDO MONTES PAVON, Agency Nos. A096-349-886 Petitioners, A096-349-887

v. MEMORANDUM* MATTHEW G. WHITAKER, Acting Attorney General,

Respondent.

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

Submitted January 11, 2019**

Before: TROTT, SILVERMAN, and TALLMAN, Circuit Judges.

Maria Josefina Valles Sanchez and Fernando Montes Pavon, natives and

citizens of Mexico, petition for review of the Board of Immigration Appeals’

(“BIA”) order denying their motion to reopen. We have jurisdiction under 8

* 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). U.S.C. § 1252. We review for an abuse of discretion the denial of a motion to

reopen. Bonilla v. Lynch, 840 F.3d 575, 581 (9th Cir. 2016). We grant the petition

for review and remand.

The BIA abused its discretion in denying petitioners’ motion to reopen as

untimely. With respect to petitioners’ claim that multiple former attorneys

provided ineffective assistance, the BIA failed to consider petitioners’ contentions

that the notario and attorney who prepared their 2003 asylum and cancellation of

removal applications provided false information in the applications and failed to

solicit information concerning the asylum claim. See Sagaydak v. Gonzales, 405

F.3d 1035, 1040 (9th Cir. 2005) (holding that the BIA is not free to ignore

arguments raised by a petitioner). The BIA’s failure to address these contentions

undermines its grounds for rejecting equitable tolling of the filing deadline because

the BIA’s analysis relies on dates and other information in those applications that

petitioners allege were falsely provided due to the ineffective assistance. See

Bonilla, 840 F.3d at 582 (holding that equitable tolling is available to a petitioner

who is prevented from filing because of deception, fraud, or error, as long as

petitioner exercised due diligence in discovering such circumstances).

The BIA further failed to explain its conclusion that petitioners, having

alleged that the female petitioner was persecuted by a local political figure, and

was rebuffed when she sought assistance from local authorities, did not present a

2 colorable asylum claim. See Lin v. Ashcroft, 377 F.3d 1014, 1027 (9th Cir. 2004)

(in assessing whether a petitioner was prejudiced by incompetent counsel, this

court “must consider the underlying merits of the case to come to a tentative

conclusion as to whether [the petitioner’s] claim, if properly presented, would be

viable”).

Accordingly, we remand for the BIA to reassess its tolling and prejudice

determinations.

PETITION FOR REVIEW GRANTED; REMANDED.