Alejandro Ponce Alvarez v. MERRICK B. GARLAND, Attorney General

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NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ALEJANDRO PONCE ALVAREZ,
Petitioner,
v.
MERRICK B. GARLAND, Attorney
General,
Respondent.
No. 22-1354
Agency No. A090-795-091
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted November 17, 2023**
Pasadena, California
Before: BYBEE, FISHER,*** and LEE, Circuit Judges.
Petitioner Alejandro Ponce Alvarez, a Mexican national, seeks review of the
Board of Immigration Appeals’ (“BIA’s” or “Board’s”) denial of his 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 D. Michael Fisher, United States Circuit Judge for the
U.S. Court of Appeals for the Third Circuit, sitting by designation.
FILED
NOV 21 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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reopen an immigration judge’s (“IJ’s”) order of removal. The Board held that
Petitioner’s motion was untimely and successive, since it was his second such
motion and filed almost two years after the order issued. Petitioner now asserts
that the deadline to file his motion was equitably tolled and that counsels’
ineffective assistance (“IAC”) entitles him to a remand to the IJ for a new hearing.
We have jurisdiction under 8 U.S.C. § 1252(a)(1); review the BIA’s “factual
findings for substantial evidence and legal questions de novo,” Guerra v. Barr,
974 F.3d 909, 911 (9th Cir. 2020) (citation omitted); and deny the petition.
“An alien may file one motion to reopen proceedings” and must do so
“within 90 days of the date of entry of [the] final administrative order of removal.”
8 U.S.C. § 1229a(c)(7). Here, the relevant order—the dismissal of Petitioner’s
appeal by the BIA—was entered on November 17, 2016. Petitioner had until
February 15, 2017 to move to reopen. He instead took until October 30, 2018—
nearly two years after entry of the order. That October motion to reopen, which is
the subject of this petition, was Petitioner’s second.
Petitioner does not deny that his motion was late and successive. On the
contrary, he observes that we have found these limits are not jurisdictional and so
may be equitably tolled. Iturribarria v. INS, 321 F.3d 889, 897 (9th Cir. 2003).
“[E]quitable tolling of deadlines and numerical limits on motions to reopen or
reconsider” may be had “during periods when a petitioner is prevented from filing

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because of deception, fraud, or error, as long as the petitioner acts with due
diligence in discovering the deception, fraud, or error.” Id. Moreover, the fraud or
error must have kept him from “obtain[ing] vital information bearing on the
existence of the claim.” Socop-Gonzalez v. INS, 272 F.3d 1176, 1193 (9th Cir.
2001) (en banc) (citation omitted).
Determining whether a petitioner has acted with diligence requires a “fact-
intensive and case-specific” inquiry attuned to each petitioner’s “particular
circumstances.” Avagyan v. Holder, 646 F.3d 672, 679 (9th Cir. 2011). To that
end, we ask three questions: “First, . . . [whether] (and when) a reasonable person
in petitioner’s position would suspect the specific fraud or error underlying her
motion to reopen”; “[s]econd, . . . 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”; and
“[t]hird, . . . when the tolling period should end.” Id. Tolling ends “when
petitioner definitively learns of the harm resulting from counsel’s deficiency” or
obtains the above-mentioned “vital information.” Id. (citation omitted). This
generally “occurs when the alien obtains a complete record of his immigration
proceedings and is able to review that information with competent counsel.” Id.
The parties focus their arguments on Avagyan’s third element: when the
tolling period should end. Here, Petitioner received a complete record of his

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immigration proceedings on May 7, 2018. At that time, he was represented by his
current counsel, whom he does not accuse of incompetence. Since Petitioner was
by then in possession of his file, the BIA determined he had “definitively learned
of . . . [the] deficient representation” by his previous advisors “and had the chance
to review [the file] with [competent] counsel.” Hence, the Board held the tolling
period ended on May 7, making Petitioner’s October 30 motion to reopen 86 days
late. Finding that his lateness “d[id] not constitute due diligence,” the BIA denied
Petitioner’s motion to reopen.
In his petition for review, Petitioner contends that the Board misread
Avagyan and that the date on which “petitioner definitively learns of the harm
resulting from counsel’s deficiency” is not necessarily when equitable tolling ends.
Specifically, he asserts that, in this case, tolling ran until August 1, 2018—the date
he received a letter from the City of Nogales Police Department in Arizona
indicating that the Department had no criminal record on him. Petitioner submits
that this letter was “vital information” within the meaning of Avagyan, meaning
that tolling extended until its receipt.
As noted, Avagyan starts the clock “when petitioner definitively learns of the
harm resulting from counsel’s deficiency, or obtains vital information bearing on
the existence of his claim”—conditions met “when the alien obtains a complete
record of his immigration proceedings and is able to review that information with

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competent counsel.” Petitioner received and was able to review his record on
May 7, so his tolling period lapsed at that point. Moreover, even under the rule
that Petitioner proposes, it is unclear that the Nogales letter was “vital” to stating a
claim for his prior counsel’s IAC, which he was well capable of doing upon receipt
of his file.
Since the Nogales letter was not “vital information,” Petitioner’s tolling
period lapsed when he received (and with competent counsel, was able to review)
his complete record on May 7—not on August 1, as he argues. The Board thus
correctly determined that his motion to reopen was 86 days late. Accordingly, we
deny the petition.
DENIED.

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