Victor Gonzalez Salazar v. Eric Holder, Jr.

MEMORANDUM **

Victor Gonzalez Salazar petitions for review of an order of the Board of Immigration Appeals (the Board or BIA) denying his motion to reopen removal proceedings as untimely. The petition is denied.

(1) Gonzalez Salazar’s motion was filed more than five years after the Board ordered him removed, long after the ninety-day deadline on motions to reopen had expired. See 8 U.S.C. § 1229a(c)(7)(A), (C)(i); 8 C.F.R. § 1003.2 (c)(2). Gonzalez Salazar maintains that his motion was nonetheless timely, either because he was entitled to equitable tolling or because of changed country conditions.

The Board was within its discretion to conclude that Gonzalez Salazar was not entitled to equitable tolling. Gonzalez Salazar did not establish that he had exercised “due diligence in discovering the deception, fraud, or error.” Iturribarria v. INS, 321 F.3d 889, 897 (9th Cir.2003). He did not present evidence as to when he first “suspeet[ed]” that prior counsel had rendered ineffective assistance, or as to why he consulted counsel when he did, rather than earlier. Avagyan v. Holder, 646 F.3d 672, 679 (9th Cir.2011). Nor did Gonzalez Salazar establish that waiting seven months to file…

dissenting in part:

I join the majority with regard to Gonzalez Salazar’s lack of due diligence and the lack of relevance of any claim of changed personal circumstances. But I would hold that Gonzalez Salazar adequately exhausted his changed country conditions claim, and so I would remand to the BIA for further consideration of that issue.

“[W]e do not employ the exhaustion doctrine in a formalistic manner.... ” Figueroa v. Mukasey, 543 F.3d 487, 492 (9th Cir.2008). An alien “need not use precise legal terminology to exhaust his claim. Nor must he provide a well developed argument to support his claim....” Arsdi v. Holder, 659 F.3d 925, 929 (9th Cir.2011). We only “inquire into whether ... the petitioner ‘put the BIA on notice’ as to the specific issues so that the BIA has ‘an opportunity to pass on th[ose] issue[s].’ ” Figueroa, 543 F.3d at 492 (quoting Zara v. Ashcroft, 383 F.3d 927, 931 (9th Cir.2004)) (alterations in original).

Gonzalez Salazar explicitly argued in his motion to reopen that “Conditions in Mexico have changed for the worse since 1997.” His original brief supporting that motion did not mention changed conditions for homosexuals; instead it referenced an…

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS FILED

FOR THE NINTH CIRCUIT OCT 01 2013

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

VICTOR GONZALEZ SALAZAR, No. 12-70749

Petitioner, Agency No. A076-728-302

v.

MEMORANDUM*

ERIC H. HOLDER, Jr., Attorney General,

Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals

Argued and Submitted September 11, 2013 San Francisco, California

Before: WALLACE and BERZON, Circuit Judges, and ZOUHARY, District Judge.**

Victor Gonzalez Salazar petitions for review of an order of the Board of

Immigration Appeals (the Board or BIA) denying his motion to reopen removal

proceedings as untimely. The petition is denied.

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** The Honorable Jack Zouhary, District Judge for the U.S. District Court for the Northern District of Ohio, sitting by designation. (1) Gonzalez Salazar’s motion was filed more than five years after the

Board ordered him removed, long after the ninety day deadline on motions…