Ramirez Canseco v. Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: November 22, 2024
• Docket: 23-1572
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS NOV 22 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

CARLOS RUFINO RAMIREZ CANSECO, No. 23-1572 Agency No. Petitioner, A075-521-365 v. MEMORANDUM* MERRICK B. GARLAND, Attorney General,

Respondent.

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

Submitted November 20, 2024** Pasadena, California

Before: RAWLINSON, CHRISTEN, and JOHNSTONE, Circuit Judges.

Carlos Rufino Ramírez Canseco (Ramírez), a native and citizen of Mexico,

petitions for review of the Board of Immigration Appeals’ (BIA) order denying his

motion to reopen. Ramírez’s motion to reopen is both number and time barred

* 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). because it is his second motion to reopen and was filed more than 14 years after

the date of the final order of removal. See 8 U.S.C. § 1229a(c)(7)(A), (C)(i). He

argues that equitable tolling applies to his motion based on either ineffective

assistance of counsel or changed country conditions. Because the parties are

familiar with the facts, we do not recount them here. We have jurisdiction

pursuant to 8 U.S.C. § 1252(a). We review for abuse of discretion the BIA’s denial

of a motion to reopen. Najmabadi v. Holder, 597 F.3d 983, 986 (9th Cir. 2010).

We deny the petition.

1. To qualify for equitable tolling due to ineffective assistance of counsel,

Ramírez must show “that he demonstrated due diligence in discovering counsel’s

fraud or error.” Salazar-Gonzalez v. Lynch, 798 F.3d 917, 920 (9th Cir. 2015)

(citation omitted). The BIA did not abuse its discretion when concluding that

Ramírez did not exercise due diligence because he did not take “reasonable steps”

to investigate fraud or error, nor make “reasonable efforts to pursue relief” even if

he was “ignorant of counsel’s shortcomings.” Bonilla v. Lynch, 840 F.3d 575, 582

(9th Cir. 2016) (quoting Avagyan v. Holder, 646 F.3d 672, 679 (9th Cir. 2011)).

Ramírez waited at least 14 years to pursue a motion to reopen for ineffective

assistance of counsel. See id. at 583 (describing a six-year delay as an

“exceedingly long lapse of time”). During this period, multiple occurrences could

have tipped off a reasonable petitioner of his counsel’s shortcomings, including the

2 23-1572 original BIA denials, notices of adverse decisions from the Ninth Circuit indicating

his counsel had failed to prosecute, and his removal from the United States in 2009

based on what prior counsel termed “a mistake.” See Avagyan, 646 F.3d at 680.

Given his exceedingly long delay in pursuing relief, Ramírez’s stated ignorance of

the United States legal system does not “excuse[] a lack of due diligence in

definitively learning of the fraud after becoming suspicious of it.” Singh v.

Gonzales, 491 F.3d 1090, 1097 (9th Cir. 2007).1

2. To qualify for equitable tolling due to changed country conditions,

Ramírez must: “(1) produce evidence that conditions have changed in the country

of removal; (2) demonstrate that the evidence is material; (3) show that the

evidence was not available and would not have been discovered or presented at the

previous hearings; and (4) demonstrate . . . prima facie eligibility for the relief

sought.” Agonafer v. Sessions, 859 F.3d 1198, 1204 (9th Cir. 2017) (quotation

omitted). First, Ramírez provided no evidence of baseline conditions in 2003 from

which to draw a comparison. See Rodriguez v. Garland, 990 F.3d 1205, 1210 (9th

Cir. 2021). Second, Ramírez fails to show “individualized relevancy” to establish

materiality. See Najmabadi, 597 F.3d at 989. Finally, evidence about Ramírez’s

1 Because lack of due diligence is determinative on its own, we do not reach the BIA’s other bases for denying equitable tolling for ineffective assistance of counsel. See Bonilla, 840 F.3d at 583; INS v. Bagamasbad, 429 U.S. 24, 25 (1976).

3 23-1572 alleged experiences in Mexico in the 1990s was “available” in 2003 and could

have been “discovered or presented” during his initial removal proceedings.

Hernandez-Ortiz v. Garland, 32 F.4th 794, 805 (9th Cir. 2022) (quoting 8 U.S.C. §

1229a(c)(7)(C)(ii)). The BIA did not abuse its discretion in concluding that

Ramírez had not provided sufficient evidence for reopening his removal

proceedings on changed country conditions.

PETITION DENIED.2

2 The temporary stay of removal shall remain in effect until issuance of the mandate. The motion for stay of removal is otherwise denied.

4 23-1572