Rosa Maria Gonzalez v. MERRICK B. GARLAND, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ROSA MARIA GONZALEZ,
Petitioner,
v.
MERRICK B. GARLAND, Attorney
General,
Respondent.
No. 20-71998
Agency No. A096-493-547
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted July 25, 2022**
San Francisco, California
Before: GRABER and WARDLAW, Circuit Judges, and BAKER,*** International
Trade Judge.
Petitioner Rosa Maria Gonzalez, a native and citizen of Mexico, seeks
review of the Board of Immigration Appeals’ ("BIA") denial of her third motion to
* 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 M. Miller Baker, Judge for the United States Court of
International Trade, sitting by designation.
FILED
JUL 27 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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reopen immigration proceedings. We review denials of motions to reopen for
abuse of discretion. Toufighi v. Mukasey, 538 F.3d 988, 992 (9th Cir. 2008).
Petitioner’s motion to reopen is both number-barred and time-barred. 8 U.S.C.
§ 1229a(c)(7)(A); 8 U.S.C. § 1229a(c)(7)(C)(i).
1. The BIA did not abuse its discretion in concluding that Petitioner’s
ineffective assistance of counsel claim was not equitably tolled. The BIA
permissibly determined that Petitioner did not "act[] with due diligence in
discovering [any] deception, fraud, or error" that may have prevented her from
including this claim with the other ineffective assistance of counsel claims that she
raised in her first motion to reopen in 2010. Iturribarria v. INS, 321 F.3d 889, 897
(9th Cir. 2003).
2. Likewise, the BIA did not abuse its discretion in concluding that
Petitioner’s adoption of a child in 2014 did not equitably toll the deadline for filing
her motion to reopen. Petitioner filed her motion five years after she adopted the
child. The BIA did not act "arbitrarily, irrationally or contrary to law" in
determining that Petitioner’s long delay in filing the motion did not warrant
equitable tolling. Toufighi, 538 F.3d at 992.
3. We lack jurisdiction to hear Petitioner’s claim that the BIA erred in
declining to reopen her proceedings sua sponte. Generally, "we lack jurisdiction to
review the Board’s decision not to invoke its sua sponte authority to

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reopen . . . proceedings." Sharma v. Holder, 633 F.3d 865, 874 (9th Cir. 2011).
Although we retain jurisdiction for "the limited purpose of reviewing the reasoning
behind the decisions for legal or constitutional error," Bonilla v. Lynch, 840 F.3d
575, 588 (9th Cir. 2016), there is no such error here. The BIA applied the correct
legal standard and concluded that Petitioner had not demonstrated exceptional
circumstances that warranted reopening. Accordingly, we lack jurisdiction to
review any other aspects of the BIA’s declination to reopen proceedings sua
sponte.
PETITION DENIED IN PART and DISMISSED IN PART.

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