Thelma Consuelo Cerna Quinonez v. LORETTA E. LYNCH, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
THELMA CONSUELO CERNA
QUINONEZ,
Petitioner,
v.
LORETTA E. LYNCH, Attorney General,
Respondent.
No. 13-70853
Agency No. A070-781-282
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted April 4, 2016**
Pasadena, California
Before: FARRIS, BEA, and M. SMITH, Circuit Judges.
Thelma Consuelo Cerna Quinonez is a Guatemalan citizen who was ordered
deported in absentia in 1996 after failing to appear at her asylum hearing. In 2011,
she filed a motion to reopen and rescind the in absentia deportation order. The
FILED
APR 15 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).

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Immigration Judge denied the motion to reopen and rescind. Cerna Quinonez
appealed to the Board of Immigration Appeals, which affirmed the IJ’s decision.
Cerna Quinonez petitions this Court for review of the BIA’s decision. We have
jurisdiction under 8 U.S.C. § 1252. We deny the petition for review.
We review denials of motions to reopen for abuse of discretion.
Mohammed v. Gonzales, 400 F.3d 785, 791 (9th Cir. 2005). We review factual
findings for substantial evidence. Id.
Cerna Quinonez made three arguments for why her case should be reopened.
First, she argued that she was not given proper notice of the consequences of
failing to appear at her asylum hearing. See 8 U.S.C. § 1252b(c)(3)(B) (1994).
Second, she argued that her previous attorney’s ineffective assistance of counsel
constituted “exceptional circumstances” that justified reopening. See 8 U.S.C.
§ 1252b(c)(3)(A) (1994). Third, she argued that her new same-sex relationship,
along with increased violence against lesbians in Guatemala, constituted “changed
country conditions” that warranted reopening to file a new asylum application. See
8 C.F.R. § 1003.23(b)(4)(I). The BIA rejected all three of these arguments.
With regards to the notice argument, the IJ found, based on evidence in the
administrative record, that Cerna Quinonez was given written and oral notice, in
English and Spanish, of the consequences of failing to appear. The IJ concluded
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that this notice was sufficient. The BIA affirmed, based on Cerna Quinonez’s
failure to offer any evidence to contradict either the record evidence, or the IJ’s
conclusion. In her briefing to this Court, Cerna Quinonez still has not pointed to
any evidence that contradicts the record evidence or the IJ’s conclusion. The
agency’s factual findings on this matter were supported by substantial evidence,
and the ultimate conclusion that Cerna Quinonez received proper notice was not an
abuse of discretion.
As to Cerna Quinonez’s exceptional circumstances claim, the BIA
concluded that this claim was untimely. Motions to reopen and rescind in absentia
deportation orders based on exceptional circumstances must normally be filed
within 180 days of the order. 8 U.S.C. § 1252b(c)(3)(A) (1994). Cerna Quinonez
filed her motion to reopen and rescind more than fourteen years after the in
absentia order, well outside the 180-day filing window. Cerna Quinonez
acknowledges this, but argues she is entitled to equitable tolling for those fourteen
years on account of her attorney’s fraudulent assurance in 1997 that her
deportation was a mistake and he would fix it. See Iturribarria v. I.N.S., 321 F.3d
889, 897 (9th Cir. 2003).
In order to obtain equitable tolling, an applicant must show due diligence.
Id. The BIA concluded that Cerna Quinonez did not show due diligence. This
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conclusion was not an abuse of discretion. Cerna Quinonez should have known of
her attorney’s ineffectiveness when she was deported in 1997. Relying on the
same attorney’s promise that he would fix the mistake that led to her deportation,
without asking any follow-up questions for fourteen years, was not reasonable and
did not show due diligence.
Finally, as to Cerna Quinonez’s changed country conditions argument, the
BIA concluded that Cerna Quinonez’s same-sex relationship was a changed
personal condition, and not a changed country condition. See Chandra v. Holder,
751 F.3d 1034, 1036–37 (9th Cir. 2014). The BIA also concluded that Cerna
Quinonez’s evidence regarding the mistreatment of lesbians in Guatemala did not
show that conditions in Guatemala had worsened since 1996, as would be
necessary to show changed country conditions. See id. at 1038–39. Neither of
these conclusions was an abuse of discretion.
DENIED.
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