Ventura-De Martinez v. Bondi

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 10, 2025
• Docket: 25-183
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS DEC 10 2025 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

IDALIA DEL CARMEN VENTURA-DE No. 25-183 MARTINEZ; J. S. M.-V., Agency Nos. A094-801-627 Petitioners, A094-801-628 v. MEMORANDUM* PAMELA BONDI, Attorney General,

Respondent.

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

Submitted December 5, 2025** Pasadena, California

Before: BEA, BADE, and LEE, Circuit Judges.

Idalia Del Carmen Ventura-De Martinez and Jancy Sarai Martinez-Ventura,

natives and citizens of El Salvador, seek review of the Board of Immigration

Appeals’ (BIA) order denying their untimely motion to reopen their removal

* 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). proceedings. We have jurisdiction under 8 U.S.C. § 1252. We deny in part and

dismiss in part the petition for review.

Ventura-De Martinez and her daughter Martinez-Ventura (together,

Petitioners) entered the United States in August 2006 and were immediately placed

in removal proceedings. In July 2008, Ventura-De Martinez filed an application for

asylum, withholding of removal, and protection under the Convention Against

Torture, which an Immigration Judge denied in January 2011.1 In February 2010,

Ventura-De Martinez gave birth to her first U.S.-citizen child. In April 2012, the

BIA dismissed their appeal. Once the order of removal became final, Petitioners

remained in the United States. Ventura-De Martinez gave birth to two more U.S.-

citizen children. In March 2024, about 12 years after the BIA’s final order of

removal, Petitioners filed a motion to reopen so they could apply for cancellation of

removal under 8 U.S.C. § 1229b(b)(l). The BIA denied the motion as untimely.

We review the BIA’s denial of motions to reopen for abuse of discretion.

Cano-Merida v. INS., 311 F.3d 960, 964 (9th Cir. 2002). “The BIA abuses its

discretion when its decision is arbitrary, irrational or contrary to law.” Nababan v.

Garland, 18 F.4th 1090, 1094 (9th Cir. 2021) (citation omitted). “We review legal

and constitutional questions de novo.” Gonzalez-Lara v. Garland, 104 F.4th 1109,

1 Martinez-Ventura is a derivative beneficiary of Ventura-De Martinez’s application.

2 25-183 1111 (9th Cir. 2024).

1. Motion to reopen. The BIA did not abuse its discretion in denying as

untimely Petitioners’ motion to reopen. A motion to reopen must generally be filed

within 90 days of the agency’s final order of removal. See 8 U.S.C.

§ 1229a(c)(7)(C)(i). The deadline may be equitably tolled, however, if the petitioner

can show (1) “some extraordinary circumstance” prevented its timely filing and (2)

the petitioner “acted with due diligence in pursuing his rights.” Lara-Garcia v.

Garland, 49 F.4th 1271, 1277 (9th Cir. 2022) (citation omitted). Both changes in

law and ineffective assistance of counsel may qualify as an extraordinary

circumstance warranting equitable tolling. See Lona v. Barr, 958 F.3d 1225, 1230-

31 (9th Cir. 2020).

First, the BIA did not abuse its discretion by declining to equitably toll the

approximately nine years that passed between the agency’s 2012 final order of

removal and the Supreme Court’s 2021 decision in Niz-Chavez v. Garland, 593 U.S.

155 (2021). In Niz-Chavez, the Supreme Court held that, if an applicant receives a

notice to appear (NTA) that fails to specify the place, date, and time of the

applicant’s first immigration proceeding, then that NTA cannot stop the accrual of

time for determining whether the applicant has the requisite ten years of physical

presence in the United States needed to qualify for cancellation of removal. Niz-

Chavez, 593 U.S. at 158-59, 170-71. Because their NTA failed to specify the date

3 25-183 and time of their first hearing, Petitioners sought to use this change to the stop-time

rule to reopen their proceedings and seek cancellation of removal.

But the BIA did not abuse its discretion in concluding that the Niz-Chavez

decision did not warrant equitably tolling Petitioners’ deadline to file a motion to

reopen. As the BIA noted, Petitioners were not eligible for cancellation of removal

at the time of the agency’s 2012 final order of removal because they lacked the

requisite ten years of physical presence needed (regardless of how one calculated it).

See 8 U.S.C. § 1229b(b)(1). In other words, there was no potential error underlying

the agency’s final order of removal that might require correction in light of Niz-

Chavez’s intervening guidance. Even if Niz-Chavez had been the law at the time of

the agency’s final order of removal, the result would have been the same.

Similarly, the BIA did not abuse its discretion in concluding that the “natural

passage of time”—and its attendant changes to Petitioners’ situation—did not

constitute “extraordinary circumstances” warranting reopening. See INS v. Rios-

Pineda, 471 U.S. 444, 449-50 (1985) (recognizing the BIA had the authority to deny

a motion to reopen based upon “intervening circumstances” that accrued following

a deportation order); Matter of H-Y-Z-, 28 I. & N. Dec. 156, 161 (BIA

2020) (holding “equities that were acquired while [the petitioner] remained illegally

in the United States after being ordered removed . . . do not constitute such truly

exceptional circumstances as to warrant discretionary reopening”).

4 25-183 Second, the BIA did not abuse its discretion by declining to equitably toll the

approximately three years between the Supreme Court’s 2021 decision in Niz-

Chavez and Petitioners’ 2024 motion to reopen. As the BIA noted, Petitioners’

motion to reopen “would have been untimely even if it were filed within 90 days of

the Niz-Chavez decision” because Niz-Chavez itself did not warrant equitable tolling.

Accordingly, any argument that Petitioners’ former counsel provided ineffective

assistance of counsel by failing to timely file a motion to reopen soon after the Niz-

Chavez decision is moot. The motion would still have been approximately nine

years too late. Furthermore, as the BIA noted, Petitioners “offer no evidence” that

they exercised due diligence in pursuing their rights during the time between their

former counsel’s death in July 2022 and their retention of new counsel who filed a

motion to reopen in March 2024.

2. Sua sponte reopening. We lack jurisdiction to review the BIA’s conclusion

that Petitioners’ case “does not present an exceptional situation” warranting sua

sponte reopening. See Ekimian v. INS, 303 F.3d 1153, 1159 (9th Cir. 2002). We

have jurisdiction to review such decisions only “for the limited purpose of reviewing

the reasoning behind the decisions for legal or constitutional error.” Bonilla v.

Lynch, 840 F.3d 575, 588 (9th Cir. 2016). Here, we find no legal or constitutional

error in the BIA’s application of its discretionary power to reopen proceedings sua

sponte.

5 25-183 PETITION DENIED IN PART AND DISMISSED IN PART. 2

2 Petitioners’ motion for a stay of removal, Dkt. 3, and supplemental motion for a stay of removal, Dkt. 15, are DENIED.

6 25-183