Jose Cortes Pimentel v. Eric H. Holder Jr.

MEMORANDUM

Petitioners Jose Salvador Cortes Pimen-tel (Cortes) and Maria Erika Diaz Ortiz (Diaz) challenge the denial of their motion to reopen as untimely, and the alternative denial of their claim of ineffective assistance of counsel (LAC).

1. We lack jurisdiction over Petitioners’ contention that the Board of Immigration Appeals (BIA) erred by declining to sua sponte reopen their case. See Minasyan v. Mukasey, 553 F.3d 1224, 1229 (9th Cir.2009); Toufighi v. Mukasey, 538 F.3d 988 , 993 & n. 8 (9th Cir.2007).

2. Equitable tolling of the deadline for filing a motion to reopen is available “when a petitioner is prevented from filing because of deception, fraud, or error, 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) (citations omitted). Cortes asserted by affidavit that he and Diaz believed that counsel had prepared and filed their motion to reopen shortly after he was hired. Accordingly, Cortes and Diaz “were left under the impression for more than 2 years that [their] motion to reopen had been filed and was pending.” Such claims are not inherently implausible given the…