Opinion
20-73438
10-13-2022
MARLENI GUADALUPE ARIAS PORTILLO, Petitioner, v. MERRICK B. GARLAND, Attorney General, Respondent.
NOT FOR PUBLICATION
Submitted October 7, 2022 [**] Pasadena, California
On Petition for Review of an Order of the Board of Immigration Appeals Agency No. A072-776-305
Before: TASHIMA and LEE, Circuit Judges, and BENNETT, [***] District Judge.
MEMORANDUM [*]
Marleni Guadalupe Arias Portillo, a native and citizen of El Salvador, moved to reopen removal proceedings and to rescind an in absentia removal order issued against her on November 7, 1996. In her motion to reopen, Arias Portillo argued that the immigration judge (IJ) should reopen her case sua sponte under 8 C.F.R. § 1003.23(b)(1). The IJ denied her motion to reopen, holding that it was untimely under 8 U.S.C. § 1229a(b)(5)(C)(i) and that Arias Portillo failed to establish reopening sua sponte was warranted under 8 C.F.R. § 1003.23(b)(1). The Board of Immigration Appeals (BIA) affirmed and adopted the IJ's decision. We have jurisdiction under 8 U.S.C. § 1252(a)(1) to review whether the motion to reopen was timely, and we deny the petition in part and dismiss in part.
1. The BIA did not abuse its discretion in denying Arias Portillo's motion to reopen and rescind the in absentia removal order against her. See B.R. v. Garland, 26 F.4th 827, 835 (9th Cir. 2022). Under 8 U.S.C. § 1229a(b)(5)(C), an alien may file a motion to reopen within 180 days after an in absentia order of removal if the alien can show that her failure to appear was due to "exceptional circumstances." Arias Portillo filed her motion to reopen well after this 180-day deadline. Arias Portillo's in absentia removal order was filed on November 7, 1996, and she filed her motion to reopen on February 21, 2020-over twenty-three years later.
Nor does Arias Portillo qualify for equitable tolling of the 180-day deadline. First, she failed to make a clear equitable tolling argument in her opening brief. See Lopez-Vazquez v. Holder, 706 F.3d 1072, 1079 (9th Cir. 2013) (citing Koerner v. Grigas, 328 F.3d 1039, 1048 (9th Cir. 2003)). Second, even if this panel did allow an implied equitable tolling argument, Arias Portillo's lack of due diligence would foreclose it. "This court recognizes equitable tolling of deadlines . . . on motions to reopen or reconsider during periods when a petitioner is prevented from filing because of deception, fraud, or error, as long as the petitioner acts with due diligence in discovering the deception, fraud, or error." Iturribarria v. INS, 321 F.3d 889, 897 (9th Cir. 2003). Arias Portillo alleges that she received erroneous legal advice in 1996 and again in 2001. But she took no action in the five years between her November 7, 1996, removal order and her procurement of TPS in 2001, and she waited 19 years to obtain legal advice from her current counsel. Even accepting that Arias Portillo was ignorant of the shortcomings of her legal assistance, the long-term lapses in counsel indicate there was insufficient due diligence to establish equitable tolling. See Bonilla v. Lynch, 840 F.3d 575, 582-83 (9th Cir. 2016) (denying due diligence after a six-year lapse in seeking legal advice).
2. The panel lacks jurisdiction to review the IJ and BIA's decision to deny reopening the removal order sua sponte. Our jurisdiction in this situation extends to "the limited purpose of reviewing the reasoning behind the decisions for legal or constitutional error." Menendez-Gonzalez v. Barr, 929 F.3d 1113, 1116 (9th Cir. 2019). But Arias Portillo has not established that the BIA based its decision on legal or constitutional error. The IJ and BIA in this case correctly articulated the "truly exceptional circumstances" standard for a motion to reopen sua sponte and did not obviously limit their discretion with an erroneous legal premise. See Lona v. Barr, 958 F.3d 1225, 1233 (9th Cir. 2020). In substance, Arias Portillo is asking this court to conduct a factual review, which is outside our jurisdiction. Id. at 1234.
The "truly exceptional circumstances" standard for reopening sua sponte is different than the exceptional circumstances standard under 8 U.S.C. § 1229a(b)(5)(C)(i). See Ekimian v. INS, 303 F.3d 1153, 1159 (9th Cir. 2002).
DENIED IN PART AND DISMISSED IN PART.
[*] 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 Richard D. Bennett, United States District Judge for the District of Maryland, sitting by designation.