Antonio Flores Bustos v. MERRICK B. GARLAND, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ANTONIO FLORES BUSTOS,
Petitioner,
v.
MERRICK B. GARLAND, Attorney
General,
Respondent.
No. 22-1760
Agency No.
A098-345-069
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted August 23, 2023
Seattle, Washington
Before: HAWKINS, GRABER, and McKEOWN, Circuit Judges.
Antonio Flores Bustos (“Flores”), a native and citizen of Mexico, appeals
from the Board of Immigration Appeals’ (“BIA”) decision denying his motion to
reopen and terminate removal proceedings based on ineffective assistance of
counsel. We review for abuse of discretion the BIA’s denial of a motion to reopen.
Avagyan v. Holder, 646 F.3d 672, 674 (9th Cir. 2011). We have jurisdiction under
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
FILED
SEP 1 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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8 U.S.C. § 1252, and we deny the petition in part and dismiss in part.
The BIA did not abuse its discretion by determining that Flores’s motion to
reopen was untimely and that equitable tolling was unavailable because Flores did
not exercise the requisite due diligence. Noncitizens seeking to reopen their
removal proceedings must file a motion to reopen within 90 days of their final
administrative order of removal. Bonilla v. Lynch, 840 F.3d 575, 582 (9th Cir.
2016). Flores did not file a motion to reopen for more than twelve years after his
final order of removal. We articulated three considerations for assessing whether a
noncitizen exercised due diligence in Avagyan v. Holder, and the pertinent
question is whether Flores “made reasonable efforts to pursue relief until [he]
learned of [his] counsel’s ineffectiveness.” 646 F.3d at 682. The BIA did not err
by determining that Flores did not provide any evidence of diligence in pursuing
relief between his 2010 order of removal and his 2022 public defender meeting,
including after he was deported and re-entered the United States twice. Thus, in
the context of his “particular circumstances,” Flores has not “demonstrate[d] the
diligence necessary for equitable tolling.” Bonilla, 840 F.3d at 583 (citations
omitted).
Our jurisdiction over BIA decisions denying sua sponte reopening is limited
to “reviewing the reasoning behind the decisions for legal or constitutional error.”
Id. at 588. We have jurisdiction to review Flores’s argument that the BIA applied

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the wrong legal standard in deciding not to reopen his removal proceedings sua
sponte, and we conclude that the BIA did not ignore or misapply Ninth Circuit case
law. We lack jurisdiction over Flores’s argument that the BIA’s decision “rested
on an important unsupported factual assumption.”
Finally, we cannot consider Flores’s argument that his final order of removal
was issued in error because he was not convicted of a crime involving moral
turpitude. The BIA’s decision was silent on this issue, and we “cannot affirm the
BIA on a ground upon which it did not rely.” Doissaint v. Mukasey, 538 F.3d
1167, 1170 (9th Cir. 2008) (citation omitted).
PETITON FOR REVIEW DENIED IN PART, DISMISSED IN PART.

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