Wilmer Palacios-Gonzlaez v. Merrick Garland ( 2021 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 18 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
WILMER AUGUSTO PALACIOS- No. 19-71277
GONZLAEZ, AKA Wilmer Augusto
Palacios-Gonzalez, Agency No. A095-321-321
Petitioner,
MEMORANDUM*
v.
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted March 16, 2021**
Before: GRABER, R. NELSON, and HUNSAKER, Circuit Judges.
Wilmer Augusto Palacios-Gonzlaez1 (“petitioner”), a native and citizen of
*
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).
1
Although petitioner’s name appears as Wilmer Augusto Palacios-Gonzlaez
in the orders issued by the agency, the petition for review and opening brief filed in
this court show his name as Wilmer Augusto Palacios-Gonzalez.
Guatemala, petitions for review of the Board of Immigration Appeals’ (“BIA”)
order denying his motion to reopen and terminate his 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), and the denial of a motion to terminate, Dominguez v. Barr, 975 F.3d 725,
734 (9th Cir. 2020). We deny the petition for review.
The BIA did not abuse its discretion in denying petitioner’s motion to
reopen as untimely, where it was filed more than 10 years after the order of
removal became final, see 8 C.F.R. § 1003.2(c)(2), and petitioner has not
established changed country conditions in Guatemala to qualify for the regulatory
exception to the filing deadline, see 8 C.F.R. § 1003.2(c)(3)(ii); Toufighi v.
Mukasey, 538 F.3d 988, 996 (9th Cir. 2008) (requiring movant to produce material
evidence with motion to reopen that conditions in country of nationality had
changed).
The BIA did not abuse its discretion in denying petitioner’s untimely motion
to reopen based on ineffective assistance of counsel where he failed to establish
that he 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....”);
2 19-71277
Avagyan v. Holder, 646 F.3d 672, 679 (9th Cir. 2011) (listing factors relevant to
the diligence inquiry).
The BIA did not abuse its discretion in denying petitioner’s motion to
reopen and terminate his proceedings where petitioner’s contention that the
immigration court lacked jurisdiction over his proceedings is foreclosed by Aguilar
Fermin v. Barr, 958 F.3d 887, 895 (9th Cir. 2020) (“the lack of time, date, and
place in the NTA sent to [petitioner] did not deprive the immigration court of
jurisdiction over her case”).
PETITION FOR REVIEW DENIED.
3 19-71277