32 F.4th 794
9th Cir.2022Background
- Petitioner (Carlos Brito, also used alias Juan Hernandez‑Ortiz) is a Mexican national who entered the U.S. without authorization in 1987 and was ordered removed in February 1997 after attempting reentry with a fraudulent LPR card. He reentered shortly thereafter and has remained in the U.S.
- After his return to the U.S., petitioner consulted attorney William Siebert (timing unclear) who advised him to wait; Siebert later pursued a labor certification (approved 2006) and filed an adjustment application denied by USCIS in 2010. Petitioner retained Lisa Ramirez in 2010, who unsuccessfully sought reopening of his adjustment application.
- In July 2013 petitioner (new counsel) filed a motion to reopen his 1997 removal proceedings—more than 16 years late—seeking asylum, withholding, and CAT relief, asserting past informal assistance to police and fear of cartel reprisals.
- Petitioner argued the 90‑day motion deadline should be equitably tolled due to ineffective assistance of prior counsel (Siebert and Ramirez) and alternatively that changed country conditions in Mexico excuse the time bar.
- The IJ denied the motion (finding counsel’s choices reasonable and no prejudice; and no changed country conditions); the BIA adopted and affirmed. Petitioner appealed to this Court; the Court denies review, concluding the BIA did not abuse its discretion.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Equitable tolling based on ineffective assistance of counsel | Siebert and Ramirez failed to file timely motions to reopen after consultations, so tolling should apply | Counsel made reasonable tactical choices; no evidence counsel consulted within the 90‑day window; petitioner cannot show prejudice | Denied: BIA did not abuse discretion—no deficient performance shown and no prejudice established |
| Changed‑country‑conditions exception to 90‑day bar | Country conditions in Mexico (cartel violence against those associated with police) materially changed since 1997, so time limit does not apply | Petitioner’s evidence was available or discoverable in 1997 and recent articles do not show a material change specific to petitioner or his proposed group | Denied: BIA reasonably concluded evidence did not show material, new country conditions sufficient to excuse the time bar |
| Prima facie eligibility for asylum/withholding/CAT | Petitioner fears persecution/torture as member of a particular social group associated with police | BIA found proposed particular social group not legally cognizable and petitioner did not show government targeting or acquiescence | Denied: petitioner forfeited challenge to social‑group/country‑risk findings; motion fails on prima facie eligibility ground |
| Due process claim re: alleged false information from immigration officer in 1997 | Petitioner says officer misled him into waiving appeal of the removal order | BIA found petitioner provided insufficient details to show he was misled or coerced | Denied: BIA's factual finding was not shown to be erroneous |
Key Cases Cited
- Mata v. Lynch, 576 U.S. 143 (2015) (recognizing statutory right to file motions to reopen and the 90‑day limit)
- INS v. Abudu, 485 U.S. 94 (1988) (motions to reopen are disfavored due to finality interests)
- Lona v. Barr, 958 F.3d 1225 (9th Cir. 2020) (equitable tolling can apply for extraordinary circumstances, including ineffective assistance)
- Ray v. Gonzales, 439 F.3d 582 (9th Cir. 2006) (procedural Lozada requirements when alleging ineffective assistance)
- Torres‑Chavez v. Holder, 567 F.3d 1096 (9th Cir. 2009) (due process requires "egregious" attorney conduct that prevents reasonable presentation of a case)
- Lo v. Ashcroft, 341 F.3d 934 (9th Cir. 2003) (examples where counsel’s wrong advice caused forfeiture of rights)
- Singh v. Holder, 658 F.3d 879 (9th Cir. 2011) (counsel’s repeated erroneous filings and failure to seek reopening warranted relief where changed circumstances made reopening likely)
- Delgado‑Ortiz v. Holder, 600 F.3d 1148 (9th Cir. 2010) (motions to reopen are particularly disfavored in immigration contexts)
- Agonafer v. Sessions, 859 F.3d 1198 (9th Cir. 2017) (standard of review and requirements for motions to reopen based on changed country conditions)
- Rodriguez v. Garland, 990 F.3d 1205 (9th Cir. 2021) (general reports of violence do not alone establish a material change in country conditions)