Lorena Salcedo Elisondo v. Robert Wilkinson ( 2021 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS FEB 23 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
LORENA SALCEDO ELISONDO, No. 19-71066
Petitioner, Agency No. A075-485-927
v.
MEMORANDUM*
ROBERT M. WILKINSON, Acting
Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted February 17, 2021**
Before: FERNANDEZ, BYBEE, and BADE, Circuit Judges.
Lorena Salcedo Elisondo, a native and citizen of Mexico, petitions for
review of the Board of Immigration Appeals’ (“BIA”) order denying her motion to
reopen removal proceedings. We have jurisdiction under 8 U.S.C. § 1252. We
*
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).
review for abuse of discretion the BIA’s denial of a motion to reopen. Najmabadi
v. Holder, 597 F.3d 983, 986 (9th Cir. 2010). We deny the petition for review.
The BIA did not abuse its discretion in denying Salcedo Elisondo’s untimely
motion to reopen based on ineffective assistance of counsel where she failed to
demonstrate she acted with the due diligence required for equitable tolling. See 8
U.S.C. § 1229a(c)(7)(C)(i); Avagyan v. Holder, 646 F.3d 672, 679 (9th Cir. 2011)
(discussing the issues to consider in determining whether petitioner exercised due
diligence when petitioner was ignorant of counsel’s shortcomings, diligence
requires reasonable efforts to pursue relief).
The BIA also did not abuse its discretion in denying Salcedo Elisondo’s
motion to reopen to apply for removal relief where she failed to establish prima
facie eligibility for asylum, withholding of removal, and relief under the
Convention Against Torture. See Toufighi v. Mukasey, 538 F.3d 988, 996-97 (9th
Cir. 2008) (petitioner’s evidence of changed country conditions was not material to
his claim and he failed to establish prima facie eligibility for relief).
The temporary stay of removal remains in place until issuance of the
mandate. The motion for a stay of removal (Docket Entry No. 8) is otherwise
denied.
PETITION FOR REVIEW DENIED.
2 19-71066