Claudia Cervantes Ortiz v. MERRICK B. GARLAND, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CLAUDIA CERVANTES ORTIZ,
Petitioner,
v.
MERRICK B. GARLAND, Attorney
General,
Respondent.
No. 20-71706
Agency No. A075-738-889
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted November 16, 2022**
San Francisco, California
Before: S.R. THOMAS and BENNETT, Circuit Judges, and LASNIK,*** District
Judge.
Petitioner Claudia Cervantes Ortiz petitions for review of an order by the
Board of Immigration Appeals (“BIA”) denying her motion to reopen her
* 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).
*** The Honorable Robert S. Lasnik, United States District Judge for the
Western District of Washington, sitting by designation.
FILED
NOV 18 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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proceedings for cancellation of removal. We have jurisdiction under 8 U.S.C. §
1252 and deny the petition in part and dismiss it in part.
Petitioner is a native and citizen of Mexico. In 2019, she filed a motion
asking the BIA to reopen her 2004 cancellation of removal proceedings. This was
her second motion to reopen; she filed her first in 2006.1 The 2019 motion is based
on two claims: ineffective assistance by her former counsel and prima facie
eligibility for adjustment of status under two pending petitions with U.S.
Citizenship and Immigration Services.
An alien may file one motion to reopen and must file it within ninety days of
the final administrative decision. 8 U.S.C. § 1229a. The time and number
limitations for moving to reopen based on ineffective assistance of counsel can be
equitably tolled “as long as the petitioner acts with due diligence in discovering the
deception, fraud, or error.” Iturribarria v. INS, 321 F.3d 889, 897 (9th Cir. 2003).
The BIA declined to equitably toll the limitations because the Petitioner “ha[d] not
demonstrated due diligence in raising her ineffective assistance of counsel claim so
as to warrant equitable tolling.” The BIA also did “not find exceptional
circumstances that would warrant sua sponte reopening pursuant to [its] limited
discretionary sua sponte authority.” Petitioner challenges both decisions.
1 The BIA denied her motion as insufficient to establish prima facie eligibility
for relief, and we denied her petition for review. Ortiz Pioquinto v. Gonzales, 187
F. App’x 778, 779 (9th Cir. 2006).

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1. Petitioner claims that the BIA erred in denying her motion to reopen
and by declining to equitably toll the time and number limitations for her second
motion to reopen. We review these decisions for abuse of discretion. See
Valeriano v. Gonzales, 474 F.3d 669, 672 (9th Cir. 2007) (motion to reopen),
Rodriguez-Lariz v. INS, 282 F.3d 1218, 1222–26 (9th Cir. 2002) (equitable
tolling). Under this standard, we must uphold the BIA’s decisions unless we find
that it acted arbitrarily, irrationally, or contrary to law. Ontiveros-Lopez v. INS,
213 F.3d 1121, 1124 (9th Cir. 2000).
To assess whether a petitioner alleging ineffective assistance of counsel in a
motion to reopen exercised due diligence, we consider three issues: (1) “if (and
when) a reasonable person in petitioner’s position would suspect the specific fraud
or error underlying her motion to reopen”; (2) “whether petitioner took reasonable
steps to investigate the suspected fraud or error, or, if petitioner [was] ignorant of
counsel’s shortcomings, whether petitioner made reasonable efforts to pursue
relief”; and (3) “when the tolling period should end; that is, when petitioner
definitively learn[ed] of the harm resulting from counsel’s deficiency, or obtain[ed]
‘vital information bearing on the existence of his claim.’” Avagyan v. Holder, 646
F.3d 672, 679 (9th Cir. 2011) (citations omitted). Our “review of petitioner’s
diligence must be fact-intensive and case-specific, assessing the reasonableness of
petitioner’s actions in the context of his or her particular circumstances.” Id.

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The BIA acted within its discretion in declining to equitably toll the
limitations on Petitioner’s untimely and number-barred motion to reopen because
she did not make “reasonable efforts to pursue relief.” Id. Petitioner’s alleged
ineffective assistance “occurred over a decade ago.” She fails to explain why she
waited thirteen years before filing the motion to reopen and took no intervening
steps to protect her rights. She allegedly became suspicious of her prior counsel’s
motivations when watching a news segment on deceptive immigration attorneys
but made no efforts to obtain new counsel until “[o]ne day,” a cousin advised her
to do so and recommended the cousin’s attorney. The BIA did not abuse its
discretion in finding that this did not constitute due diligence. See Singh v.
Gonzales, 491 F.3d 1091, 1096–97 (9th Cir. 2007) (affirming finding of no due
diligence where petitioner took no steps to protect his rights until six months after
he first became suspicious of his counsel’s assistance).
2. Petitioner also challenges the BIA’s refusal to exercise its sua sponte
authority under 8 C.F.R. § 1003.2(a) to reopen her proceedings. Petitioner repeats
an argument from her motion to reopen that she is prima facie eligible for
adjustment of status due to pending petitions with U.S. Citizenship and
Immigration Services. We have jurisdiction to review the BIA’s refusal only if it
was based on a legal or constitutional error. Bonilla v. Lynch, 840 F.3d 575, 584
(9th Cir. 2016). Here, Petitioner alleges no such error; she simply disagrees with

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the BIA’s assessment that the facts of her case did not constitute “exceptional
circumstances that would warrant sua sponte reopening pursuant to [its] limited
discretionary sua sponte authority.” Therefore, we lack jurisdiction to consider this
claim.
PETITION DISMISSED IN PART AND DENIED IN PART.

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