Villegas Avendano v. Bondi

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 4, 2025
• Docket: 23-4055
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 4 2025 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

OSCAR EDUARDO VILLEGAS No. 23-4055 AVENDANO; DIANA MARCELA Agency Nos. ARANDA BARRERA; GABRIELA A240-609-441 VILLEGAS ARANDA, A240-084-545 A240-084-546 Petitioners,

v. MEMORANDUM*

PAMELA BONDI, Attorney General,

Respondent.

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

Submitted April 2, 2025** Pasadena, California

Before: GILMAN***, M. SMITH, and VANDYKE, Circuit Judges.

Petitioners Oscar Eduardo Villegas Avendano, Diana Marcela Aranda

Barrera, and their minor daughter, (collectively “Petitioners”) are natives 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). *** The Honorable Ronald Lee Gilman, United States Circuit Judge for the Court of Appeals, 6th Circuit, sitting by designation. citizens of Colombia. They seek review of the Board of Immigration Appeals’

(“BIA”) summary dismissal of their appeal from a decision by an Immigration Judge

(“IJ”) denying their applications for asylum, withholding of removal, and protection

under the Convention Against Torture (“CAT”). We have jurisdiction under

8 U.S.C. § 1252, and we deny the petition.

We review the BIA’s summary dismissal of an appeal under the

abuse-of-discretion standard. Nolasco-Amaya v. Garland, 14 F.4th 1007, 1012 (9th

Cir. 2021). And we review the underlying “primarily factual” question of whether

an applicant exercised due diligence under the substantial evidence standard. See

Wilkinson v. Garland, 601 U.S. 209, 225 (2024); see also 8 U.S.C. § 1252(b)(4)(B).

Under this “highly deferential” standard, the agency’s findings are considered

“conclusive unless any reasonable adjudicator would be compelled to conclude to

the contrary.” Rodriguez-Zuniga v. Garland, 69 F.4th 1012, 1016 (9th Cir. 2023)

(citation omitted).

Petitioners’ appeal to the BIA was untimely because it was filed more than 30

calendar days after the IJ’s decision. See 8 C.F.R. § 1003.38(b). Petitioners argue

that they are entitled to equitable tolling of the filing deadline based upon their

allegation that the appeal packet was misplaced during transit. “[A] petitioner is

entitled to equitable tolling of the deadline ‘during periods when a petitioner is

prevented from filing because of a deception, fraud, or error, as long as petitioner

2 23-4055 acts with due diligence in discovering the deception, fraud or error.’” Avagyan v.

Holder, 646 F.3d 672, 679 (9th Cir. 2011) (citation omitted).

Substantial evidence supports the BIA’s conclusion that Petitioners did not

act with due diligence upon learning of the misplaced packet. “[D]iligence in

attempting to obtain nonvital information or acquiescence is not ‘diligence’ within

the meaning of our [court’s] equitable tolling jurisprudence.” Valeriano v. Gonzales,

474 F.3d 669, 673 (9th Cir. 2007). Petitioners’ one-week delay after learning of the

misplaced packet was due to Petitioners’ effort to obtain “nonvital information”

from FedEx about the misplaced packet, and to obtain “nonvital … acquiescence”

from DHS attorneys in not opposing the late appeal. The record therefore does not

compel the conclusion that Petitioners acted with due diligence in remedying the late

filing. The BIA did not abuse its discretion by summarily dismissing the appeal.

Petitioners have waived any potential ineffective assistance of counsel

(“IAC”) claim by failing to include any argument in their opening brief. See

Ghahremani v. Gonzales, 498 F.3d 993, 997 (9th Cir. 2007) (“Issues raised in a brief

that are not supported by argument are deemed abandoned.” (citation omitted)). This

claim also is not exhausted because Petitioners did not file a motion to reopen at the

BIA or raise their IAC claim in that venue in the first instance. See Benedicto v.

Garland, 12 F.4th 1049, 1062 (9th Cir. 2021).

PETITION DENIED.

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