United States v. 2020-01-30 | 16-73689 | GUILLERMO BAYARDO SANDOVAL V. WILLIAM BARR | nonprecedential | memorandum disposition |

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

GUILLERMO BAYARDO SANDOVAL,

Petitioner,

ALBERTA HERNANDEZ

Petitioner,

v.

WILLIAM P. BARR, Attorney General,

Respondent.

No. 16-73689

Agency No. A095-304-031
A095-304-032

MEMORANDUM
*

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

Submitted January 10, 2020
**

Pasadena, California

Before: WATFORD and BENNETT, Circuit Judges, and RAKOFF,
***
District
Judge.

*
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 Jed S. Rakoff, United States District Judge for the
Southern District of New York, sitting by designation.
FILED

JAN 30 2020

MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

2

Petitioners Guillermo Bayardo Sandoval and Alberta Hernandez, natives and
citizens of Mexico, seek review of the decision of the Board of Immigration
Appeals denying their motion to reopen. We have jurisdiction under 8 U.S.C. §
1252 and “review the Board’s denial of a motion to reopen for an abuse of
discretion, but review purely legal questions de novo.” Bonilla v. Lynch, 840 F.3d
575, 581 (9th Cir. 2016). We deny the petition for review.
The Board did not abuse its discretion in denying the motion to reopen as
untimely. Petitioners filed their motion to reopen well outside the statutory 90-day
window, see 8 U.S.C. § 1229a(c)(7)(C)(i), and cannot equitably toll the deadline
based on ineffective assistance of counsel because they have not shown due
diligence after 2011. For instance, Petitioners did not show due diligence when
they failed to follow Attorney Hill’s advice that they seek relief when their son
turned 21 years old. See Avagyan v. Holder, 646 F.3d 672, 679 (9th Cir. 2011)
(factors for determining whether a petitioner showed due diligence include
“whether petitioner took reasonable steps to investigate the suspected fraud or
error, or, if petitioner is ignorant of counsel’s shortcomings, whether petitioner
made reasonable efforts to pursue relief”); cf. Ghahremani v. Gonzales, 498 F.3d
993, 1000 (9th Cir. 2007) (diligence shown by continuous investigation, pursuit of

3

relief, and “unbroken efforts to retain competent counsel”).
1

Because the determination regarding equitable tolling is dispositive, we do
not reach the merits of petitioners’ argument regarding ineffective assistance of
counsel. See Simeonov v. Ashcroft, 371 F.3d 532, 538 (9th Cir. 2004) (courts and
agencies are not required to reach non-dispositive issues).
The petition for review is DENIED.

1
Nor can Petitioners rely on the advice of unnamed attorneys to show diligence.
See Bonilla, 840 F.3d at 583.