NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS FEB 5 2026 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
PABLO GONZALEZ GONZALEZ, AKA No. 20-70633 Pedblo Gonzalez, Agency No. A098-189-565 Petitioner,
v. MEMORANDUM*
PAMELA BONDI, Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration Appeals
Submitted February 3, 2026** Pasadena, California
Before: LEE, KOH, and DE ALBA, Circuit Judges.
Petitioner Pablo Gonzalez Gonzalez, native and citizen of Guatemala,
petitions for review of a decision by the Board of Immigration Appeals (“BIA”)
that denied Petitioner’s motion to reconsider its prior order denying Petitioner’s
untimely motion to reopen removal proceedings. The BIA also construed and
* 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). denied Petitioner’s motion as a second untimely motion to reopen removal
proceedings. Petitioner claims for the first time on appeal that this case should be
remanded for dismissal because the Department of Homeland Security (“DHS”)
impermissibly altered the Notice to Appear (“NTA”) after service on Petitioner and
before filing the NTA in immigration court. We have jurisdiction over this appeal
under 8 U.S.C. § 1252, and we deny the petition.
We review the denial of motions to reconsider and motions to reopen for
abuse of discretion. Cardoso-Tlaseca v. Gonzales, 460 F.3d 1102, 1106 (9th Cir.
2006). “The BIA abuses its discretion when it acts ‘arbitrarily, irrationally, or
contrary to the law.’” Tadevosyan v. Holder, 743 F.3d 1250, 1252-53 (9th Cir.
2014) (quoting Movsisian v. Ashcroft, 395 F.3d 1095, 1098 (9th Cir. 2005)).
1. The BIA did not abuse its discretion in denying equitable tolling of
Petitioner’s motion to reconsider or second motion to reopen. See Cui v. Garland,
13 F.4th 991, 1000 (9th Cir. 2021) (“We review BIA decisions to deny equitable
tolling of a motion to reopen for abuse of discretion.”). We recognize equitable
tolling of deadlines on motions to reopen or reconsider “when a petitioner is
prevented from filing because of deception, fraud, or error, as long as the petitioner
acts with due diligence in discovering the deception, fraud, or error.” Iturribarria
v. INS, 321 F.3d 889, 897 (9th Cir. 2003).
To be entitled to equitable tolling, Petitioner must demonstrate that (1) “he
2 has been reasonably diligent in pursuing his rights not only while an impediment to
filing caused by an extraordinary circumstance existed, but before and after as
well”; and (2) that the “extraordinary circumstance prevented a petitioner from
acting with reasonable diligence from making a timely filing.” Smith v. Davis, 953
F.3d 582, 598-600 (9th Cir. 2020) (en banc). “[I]n every instance reasonable
diligence seemingly requires the petitioner to work on his petition with some
regularity—as permitted by his circumstances.” Id. at 601.
“‘We measure a petitioner’s diligence from the date’ on which ‘a reasonable
person in the petitioner’s position is put on notice that something was wrong.’”
Bent v. Garland, 115 F.4th 934, 942 (9th Cir. 2024) (alterations adopted) (quoting
Avagyan v. Holder, 646 F.3d 672, 680 (9th Cir. 2011)).
Petitioner’s motion to reopen was based on the fact that his controlled
substances conviction–a basis for his removability—had been vacated under Cal.
Penal Code § 1473.7 (2018), which provides that a person no longer in criminal
custody may file a motion to vacate a conviction or sentence because the moving
party was unable to meaningfully understand or defend against “the actual or
potential” adverse immigration consequences of his plea. Petitioner was put on
notice that he had entered a plea with adverse immigration consequences on May
24, 2016, when Petitioner was served with an NTA charging him as removable
based on his conviction. Bent, 115 F.4th at 942.
3 Petitioner did not file a motion to vacate his conviction under § 1473.7 until
February 23, 2018, nearly two years later. As Petitioner notes, § 1473.7 did not
become effective until January 1, 2017. Assuming reasonable diligence did not
require Petitioner to pursue any other form of post-conviction relief, Petitioner still
delayed filing to vacate his conviction for over a year between January 1, 2017 and
February 23, 2018.
Petitioner has not met his burden to show that he acted with reasonable
diligence during this period of over a year. Petitioner has not alleged that he
worked with any “regularity” to seek post-conviction relief between January 2017
and February 2018 or that his circumstances prevented him from doing so. Smith,
953 F.3d at 601.
Moreover, Petitioner’s two proffered justifications for the year-long delay
fail to establish that Petitioner acted with reasonable diligence. First, relying on
§ 1473.7(b), Petitioner argues that he could not file to vacate his conviction under
§ 1473.7 until the removal order became final. However, § 1473.7(a)(1) broadly
authorizes filing for vacatur of convictions with “actual or potential” immigration
consequences, and § 1473.7(b) “imposes an outside deadline” for filing rather than
requiring individuals to wait until removal proceedings have initiated or
completed. See People v. Morales, 235 Cal. Rptr. 3d 776, 782-84 (Cal. Ct. App.
2018). Additionally, even if it were reasonably diligent for Petitioner to take no
4 steps towards vacating his conviction until the removal order became final,
Petitioner has not shown that he was reasonably diligent during the six months
between when his removal order became final on August 4, 2017, and Petitioner
filing for vacatur on February 23, 2018. See Singh v. Gonzales, 499 F.3d 969, 979
(9th Cir. 2007) (“An order of removal becomes final upon . . . a determination by
the Board of Immigration Appeals affirming such order.” (quotation omitted)).
Second, Petitioner contends that the BIA’s decision conflicts with the
California Superior Court’s finding that he exercised reasonable diligence for the
purpose of § 1473.7(b), under which a motion is deemed timely if filed with
reasonable diligence after a removal order based on the conviction becomes final.
Construing this argument as one for collateral estoppel, Petitioner has not
demonstrated that the requirements of § 1473.7(b) for demonstrating reasonable
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NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS FEB 5 2026 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
PABLO GONZALEZ GONZALEZ, AKA No. 20-70633 Pedblo Gonzalez, Agency No. A098-189-565 Petitioner,
v. MEMORANDUM*
PAMELA BONDI, Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration Appeals
Submitted February 3, 2026** Pasadena, California
Before: LEE, KOH, and DE ALBA, Circuit Judges.
Petitioner Pablo Gonzalez Gonzalez, native and citizen of Guatemala,
petitions for review of a decision by the Board of Immigration Appeals (“BIA”)
that denied Petitioner’s motion to reconsider its prior order denying Petitioner’s
untimely motion to reopen removal proceedings. The BIA also construed and
* 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). denied Petitioner’s motion as a second untimely motion to reopen removal
proceedings. Petitioner claims for the first time on appeal that this case should be
remanded for dismissal because the Department of Homeland Security (“DHS”)
impermissibly altered the Notice to Appear (“NTA”) after service on Petitioner and
before filing the NTA in immigration court. We have jurisdiction over this appeal
under 8 U.S.C. § 1252, and we deny the petition.
We review the denial of motions to reconsider and motions to reopen for
abuse of discretion. Cardoso-Tlaseca v. Gonzales, 460 F.3d 1102, 1106 (9th Cir.
2006). “The BIA abuses its discretion when it acts ‘arbitrarily, irrationally, or
contrary to the law.’” Tadevosyan v. Holder, 743 F.3d 1250, 1252-53 (9th Cir.
2014) (quoting Movsisian v. Ashcroft, 395 F.3d 1095, 1098 (9th Cir. 2005)).
1. The BIA did not abuse its discretion in denying equitable tolling of
Petitioner’s motion to reconsider or second motion to reopen. See Cui v. Garland,
13 F.4th 991, 1000 (9th Cir. 2021) (“We review BIA decisions to deny equitable
tolling of a motion to reopen for abuse of discretion.”). We recognize equitable
tolling of deadlines on motions to reopen or reconsider “when a petitioner is
prevented from filing because of deception, fraud, or error, as long as the petitioner
acts with due diligence in discovering the deception, fraud, or error.” Iturribarria
v. INS, 321 F.3d 889, 897 (9th Cir. 2003).
To be entitled to equitable tolling, Petitioner must demonstrate that (1) “he
2 has been reasonably diligent in pursuing his rights not only while an impediment to
filing caused by an extraordinary circumstance existed, but before and after as
well”; and (2) that the “extraordinary circumstance prevented a petitioner from
acting with reasonable diligence from making a timely filing.” Smith v. Davis, 953
F.3d 582, 598-600 (9th Cir. 2020) (en banc). “[I]n every instance reasonable
diligence seemingly requires the petitioner to work on his petition with some
regularity—as permitted by his circumstances.” Id. at 601.
“‘We measure a petitioner’s diligence from the date’ on which ‘a reasonable
person in the petitioner’s position is put on notice that something was wrong.’”
Bent v. Garland, 115 F.4th 934, 942 (9th Cir. 2024) (alterations adopted) (quoting
Avagyan v. Holder, 646 F.3d 672, 680 (9th Cir. 2011)).
Petitioner’s motion to reopen was based on the fact that his controlled
substances conviction–a basis for his removability—had been vacated under Cal.
Penal Code § 1473.7 (2018), which provides that a person no longer in criminal
custody may file a motion to vacate a conviction or sentence because the moving
party was unable to meaningfully understand or defend against “the actual or
potential” adverse immigration consequences of his plea. Petitioner was put on
notice that he had entered a plea with adverse immigration consequences on May
24, 2016, when Petitioner was served with an NTA charging him as removable
based on his conviction. Bent, 115 F.4th at 942.
3 Petitioner did not file a motion to vacate his conviction under § 1473.7 until
February 23, 2018, nearly two years later. As Petitioner notes, § 1473.7 did not
become effective until January 1, 2017. Assuming reasonable diligence did not
require Petitioner to pursue any other form of post-conviction relief, Petitioner still
delayed filing to vacate his conviction for over a year between January 1, 2017 and
February 23, 2018.
Petitioner has not met his burden to show that he acted with reasonable
diligence during this period of over a year. Petitioner has not alleged that he
worked with any “regularity” to seek post-conviction relief between January 2017
and February 2018 or that his circumstances prevented him from doing so. Smith,
953 F.3d at 601.
Moreover, Petitioner’s two proffered justifications for the year-long delay
fail to establish that Petitioner acted with reasonable diligence. First, relying on
§ 1473.7(b), Petitioner argues that he could not file to vacate his conviction under
§ 1473.7 until the removal order became final. However, § 1473.7(a)(1) broadly
authorizes filing for vacatur of convictions with “actual or potential” immigration
consequences, and § 1473.7(b) “imposes an outside deadline” for filing rather than
requiring individuals to wait until removal proceedings have initiated or
completed. See People v. Morales, 235 Cal. Rptr. 3d 776, 782-84 (Cal. Ct. App.
2018). Additionally, even if it were reasonably diligent for Petitioner to take no
4 steps towards vacating his conviction until the removal order became final,
Petitioner has not shown that he was reasonably diligent during the six months
between when his removal order became final on August 4, 2017, and Petitioner
filing for vacatur on February 23, 2018. See Singh v. Gonzales, 499 F.3d 969, 979
(9th Cir. 2007) (“An order of removal becomes final upon . . . a determination by
the Board of Immigration Appeals affirming such order.” (quotation omitted)).
Second, Petitioner contends that the BIA’s decision conflicts with the
California Superior Court’s finding that he exercised reasonable diligence for the
purpose of § 1473.7(b), under which a motion is deemed timely if filed with
reasonable diligence after a removal order based on the conviction becomes final.
Construing this argument as one for collateral estoppel, Petitioner has not
demonstrated that the requirements of § 1473.7(b) for demonstrating reasonable
diligence are the same as the criteria that the BIA requires for equitable tolling, nor
has Petitioner shown that the United States is the same party that he opposed in
state court as is required for collateral estoppel. See White v. City of Pasadena, 671
F.3d 918, 925-27 (9th Cir. 2012) (California law on collateral estoppel requires
that the issues be identical and the parties be the same in the current and prior
proceeding). Therefore, Petitioner has not satisfied the requirements for collateral
estoppel.
2. Petitioner failed to exhaust his claim that DHS had materially altered
5 the NTA after service on Petitioner. Umana-Escobar v. Garland, 69 F.4th 544, 550
(9th Cir. 2023) (“Exhaustion requires a non-constitutional legal claim to the court
on appeal to have first been raised in the administrative proceedings below.”)
(quoting Bare v. Barr, 975 F.3d 952, 960 (9th Cir. 2020)). “Although the
exhaustion requirement is non-jurisdictional, we must apply it when, as here, it is
invoked by the government.” Murillo-Chavez v. Bondi, 128 F.4th 1076, 1082 (9th
Cir. 2025) (citation omitted).
Contrary to Petitioner’s assertions, DHS did not prevent Petitioner from
raising his claim regarding the allegedly altered NTA during the proceedings
below. During Petitioner’s May 16, 2016, hearing before the Immigration Judge
(“IJ”), Petitioner’s counsel confirmed proper service of the NTA on Petitioner and
agreed to admitting the allegedly altered NTA. Both during the hearing before the
IJ and on appeal to the BIA, Petitioner had the opportunity to argue that the NTA
admitted as Exhibit 1 differed from the NTA that was served on him, but Petitioner
failed to do so.
PETITION DENIED.1
1 The stay of removal pending review previously granted by this court (Dkt. 13) remains in effect until issuance of the mandate.