464 F. App'x 615
9th Cir.2011Background
- Mendoza-Ortiz, a lawful permanent resident since 1989, faced removal after a California Penal Code § 273.5(a) conviction.
- He was represented by counsel and conceded removability, applying for cancellation of removal.
- The IJ required a fingerprint background check before the cancellation merits hearing; Mendoza-Ortiz failed to obtain it.
- Counsel later admitted prior counsel misinformed him about completing required background checks.
- The IJ denied a continuance to complete the fingerprinting; Mendoza-Ortiz timely appealed to the BIA, which affirmed in 2007.
- Mendoza-Ortiz filed an initial motion to reopen in 2007 that was denied as incomplete; new counsel later pursued a second motion to reopen in 2008, denied as time and number barred.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the BIA abused its discretion denying the motion to reopen | Mendoza-Ortiz was equitably tolled due to ineffective counsel. | BIA properly denied as time/number barred despite tolling claims. | BIA abused its discretion; equitable tolling applied to second motion to reopen. |
| Whether the IJ abused discretion denying a continuance for fingerprint submission | Applicant diligently pursued cancellation; prior counsel's ineffective performance hindered compliance. | Continuance denied appropriately given record and procedures. | IJ abused discretion; four-factor test shows need for continuance. |
| Remand and merit adjudication | BIA should adjudicate motion to reopen on the merits and consider cancellation anew if reopened. | Remain within BIA's framework for reopening determinations. | On remand, BIA must adjudicate on the merits; may grant a new hearing if reopened. |
Key Cases Cited
- Avagyan v. Holder, 646 F.3d 672 (9th Cir. 2011) (equitable tolling for ineffective assistance of counsel; review for abuse of discretion)
- Cui v. Mukasey, 538 F.3d 1289 (9th Cir. 2008) (four-factor test for evaluating IJ's denial of a continuance)
- Malilia v. Holder, 632 F.3d 598 (9th Cir. 2011) (abuse of discretion standard for IJ continuances)