Celia Benavidez v. Loretta E. Lynch

MEMORANDUM *

Celia Victorina Benavidez, a native and citizen of El Salvador, petitions for review of the Board of Immigration Appeals’ (“BIA”) denial of her motion to reopen. We have jurisdiction under 8 U.S.C. § 1252 , and we deny Benavidez’s petition.

We review the BIA’s denial of a motion to reopen for abuse of discretion. Singh v. Gonzales, 491 F.3d 1090, 1095 (9th Cir.2007). “The decision of the BIA should be left undisturbed unless it is arbitrary, irrational, or contrary to law.” Feng Gui Lin v. Holder, 588 F.3d 981, 984 (9th Cir.2009) (quoting He v. Gonzales, 501 F.3d 1128, 1131 (9th Cir.2007)).

A party must file a motion to reopen deportation proceedings no later than 90 days after the date on which the final administration decision was rendered. 8 C.F.R. § 1003.2 (c)(2). Benavidez filed her motion to reopen on July 5, 2011, nearly four years after the date on which the BIA rendered its decision. We have held, however, that in certain circumstances, the BIA should toll the 90-day filing period for a petitioner seeking to reopen on the basis of ineffective assistance of counsel. Singh v. Ashcroft, 367 F.3d 1182, 1185-86 (9th Cir.2004). For equitable tolling due to…

dissenting:

The majority concludes that Benavidez failed to exercise due diligence in pursuing her claim of ineffective assistance of counsel. To be sure, Benavidez does not specify exactly when she began to suspect that her prior attorney had rendered ineffective assistance of counsel. Her declarations show, however, that once she began having trouble communicating with her former attorney (and therefore to suspect ineffective assistance of counsel) she contacted her current attorney. 1 All the time prior to that contact should be equitably tolled because she reasonably relied on her attorney’s assurances that the BIA erred when it denied her appeal and that he was pursuing an appeal to this Court. See Mejia-Hernandez v. Holder, 683 F.3d 818, 826 (9th Cir.2011).

Following Benavidez’s meeting with her new attorney at or about the end of 2010, it is clear that the new attorney failed for approximately seven months to file a motion to reopen for reasons that may or may not have been justifiable. First, he had trouble obtaining the complete file from Benavidez’s former counsel even though it was his own former law partner who had served in that capacity. Second, he suffered an…

FILED

NOT FOR PUBLICATION JUL 28 2015

MOLLY C. DWYER, CLERK

UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

CELIA VICTORINA BENAVIDEZ, No. 12-70109

Petitioner, Agency No. A094 454 970

v.

MEMORANDUM*

LORETTA E. LYNCH, Attorney General,

Respondent.

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

Argued and Submitted July 9, 2015 Pasadena, California

Before: REINHARDT, TASHIMA, and CLIFTON, Circuit Judges.

Celia Victorina Benavidez, a native and citizen of El Salvador, petitions for

review of the Board of Immigration Appeals’ (“BIA”) denial of her motion to

reopen. We have jurisdiction under 8 U.S.C. § 1252, and we deny Benavidez’s

petition.

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. We review the BIA’s denial of a motion to reopen for abuse of discretion.

Singh v. Gonzales, 491 F.3d 1090, 1095 (9th Cir. 2007). “The decision of the BIA

should be left undisturbed unless it is arbitrary, irrational, or contrary to law.”

Feng Gui Lin v. Holder, 588…