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Nino v. Garland

United States Court of Appeals, Ninth Circuit
Oct 12, 2022
No. 17-72869 (9th Cir. Oct. 12, 2022)

Opinion

17-72869

10-12-2022

CANDIDO ZUNIGA NINO; MARIA DE LA LUZ GARCIA ROBLEZ, Petitioners, v. MERRICK B. GARLAND, Attorney General, Respondent.


NOT FOR PUBLICATION

Submitted October 7, 2022 Pasadena, California

The panel unanimously finds this case suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2)(C).

On Petition for Review of an Order of the Board of Immigration Appeals Agency Nos. A079-534-069, A079-534-070

Before: TASHIMA and LEE, Circuit Judges, and BENNETT, District Judge.

MEMORANDUM [*]

Candido Zuniga Nino and Maria de la Luz Garcia Roblez, natives and citizens of Mexico, petition for review of the Board of Immigration Appeals' ("BIA") order denying their motion to reopen removal proceedings. We have jurisdiction under 8 U.S.C. § 1252. We review for abuse of discretion the denial of a motion to reopen. Najmabadi v. Holder, 597 F.3d 983, 986 (9th Cir. 2010). The court reviews findings of fact, including counsel's performance, for substantial evidence. Lin v. Ashcroft, 377 F.3d 1014, 1023-24 (9th Cir. 2004). We review de novo questions of law. Bhattarai v. Lynch, 835 F.3d 1037, 1042 (9th Cir. 2016). We deny the petition for review.

The BIA did not abuse its discretion in denying petitioners' untimely motion to reopen based on ineffective assistance of counsel where petitioners failed to demonstrate they acted with the due diligence required for equitable tolling. See 8 U.S.C. § 1229a(c)(7)(C)(i); Singh v. Holder, 658 F.3d 879, 884 (9th Cir. 2011) ("To qualify for equitable tolling on account of ineffective assistance of counsel, a petitioner must demonstrate . . . due diligence in discovering counsel's fraud or error ...."); Avagyan v. Holder, 646 F.3d 672, 679 (9th Cir. 2011) (factors relevant to the diligence inquiry).

The BIA did not abuse its discretion in denying petitioners' motion to reopen as untimely, where it was filed over seven years after the final removal order, see 8 U.S.C. § 1229a(c)(7)(C)(i) (motion to reopen must be filed within ninety days of the final removal order), and petitioners have not established changed country conditions in Mexico to qualify for an exception to the filing deadline, see 8 U.S.C. § 1229a(c)(7)(C)(ii); Toufighi v. Mukasey, 538 F.3d 988, 996-97 (9th Cir. 2008) (movant must produce material evidence that conditions in country of nationality had changed).

Petitioners' contentions that the agency ignored evidence or otherwise erred in its analysis of their claims also fail. See Najmabadi, 597 F.3d at 990 (agency need not write an exegesis on every contention); Fernandez v. Gonzales, 439 F.3d 592, 603 (9th Cir. 2006) (petitioner did not overcome the presumption that the BIA reviewed the record).

The stay of removal remains in place until the mandate issues.

PETITION FOR REVIEW DENIED.

[*] This disposition is not appropriate for publication and is not precedent except as provided by Ninth Cir. R. 36-3.

The Honorable Richard D. Bennett, United States District Judge for the District of Maryland, sitting by designation.


Summaries of

Nino v. Garland

United States Court of Appeals, Ninth Circuit
Oct 12, 2022
No. 17-72869 (9th Cir. Oct. 12, 2022)
Case details for

Nino v. Garland

Case Details

Full title:CANDIDO ZUNIGA NINO; MARIA DE LA LUZ GARCIA ROBLEZ, Petitioners, v…

Court:United States Court of Appeals, Ninth Circuit

Date published: Oct 12, 2022

Citations

No. 17-72869 (9th Cir. Oct. 12, 2022)