Opinion
20-72811
10-24-2022
ORLANDO GONZALEZ-HENRIQUEZ, Petitioner, v. MERRICK B. GARLAND, Attorney General, Respondent.
NOT FOR PUBLICATION
Submitted October 20, 2022 [**]San Francisco, California
On Petition for Review of an Order of the Board of Immigration Appeals Agency No. A097-340-036
Before: HAWKINS, BEA, and NGUYEN, Circuit Judges.
MEMORANDUM [*]
Orlando Gonzalez-Henriquez petitions for review of a decision by the Board of Immigration Appeals ("BIA") denying his motion to reopen removal proceedings as untimely. We have jurisdiction under 8 U.S.C. § 1252. Reviewing for abuse of discretion, see Bonilla v. Lynch, 840 F.3d 575, 581 (9th Cir. 2016), we deny the petition for review.
We assume, for the sake of argument, that Gonzalez-Henriquez's counsel provided ineffective assistance when withdrawing his application for asylum and withholding of removal and telling the immigration judge that he was ineligible for voluntary departure. See id. at 582-83. Nonetheless, Gonzalez-Henriquez fails to show that he "act[ed] with due diligence in discovering" counsel's alleged error. Id. at 582.
Gonzalez-Henriquez does not explain why he waited more than 12 years to move to reopen the removal proceedings. He was aware that asylum and withholding offered potential relief from removal because he applied for these forms of relief and was present when his attorney withdrew the application. Similarly, he was aware that voluntary departure was potentially an option because his attorney and the IJ discussed why he was ineligible for it. He identifies no obstacle that inhibited him from consulting another attorney for a second opinion. "[T]he BIA appropriately concluded that [Gonzalez-Henriquez] did not make 'reasonable efforts to pursue relief' and so did not demonstrate the diligence necessary for equitable tolling." Id. at 583 (quoting Avagyan v. Holder, 646 F.3d 672, 679 (9th Cir. 2011)).
PETITION DENIED.
[*] 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).