JOSE SALVADOR CORTES PIMENTEL, AKA Jose Salvador Cortez Pimentel v. ERIC H. HOLDER, Jr., Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOSE SALVADOR CORTES
PIMENTEL, AKA Jose Salvador Cortez
Pimentel and MARIA ERIKA DIAZ
ORTIZ,
Petitioners,
v.
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
No. 08-74641
Agency Nos. A075-647-287
A075-645-679
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted April 11, 2013
Pasadena, California
Before: RAWLINSON and BYBEE, Circuit Judges, and SIMON, District Judge.**
FILED
AUG 02 2013
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 Honorable Michael H. Simon, District Judge for the U.S. District
Court for the District of Oregon, sitting by designation.
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Petitioners Jose Salvador Cortes Pimentel (Cortes) and Maria Erika Diaz
Ortiz (Diaz) challenge the denial of their motion to reopen as untimely, and the
alternative denial of their claim of ineffective assistance of counsel (IAC).
1. We lack jurisdiction over Petitioners’ contention that the Board of
Immigration Appeals (BIA) erred by declining to sua sponte reopen their case. See
Minasyan v. Mukasey, 553 F.3d 1224, 1229 (9th Cir. 2009); Toufighi v. Mukasey,
538 F.3d 988, 993 & n.8 (9th Cir. 2007).
2. Equitable tolling of the deadline for filing a motion to reopen is
available “when a petitioner is prevented from filing because of deception, fraud,
or error, as long as the petitioner acts with due diligence in discovering the
deception, fraud, or error. . . .” Iturribarria v. INS, 321 F.3d 889, 897 (9th Cir.
2003) (citations omitted). Cortes asserted by affidavit that he and Diaz believed
that counsel had prepared and filed their motion to reopen shortly after he was
hired. Accordingly, Cortes and Diaz “were left under the impression for more than
2 years that [their] motion to reopen had been filed and was pending.” Such claims
are not inherently implausible given the Petitioners’ prior experience with
immigration court delays. Accordingly, it was error for the BIA to decline to
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equitably toll the filing deadline for lack of diligence. See Ghahremani v.
Gonzales, 498 F.3d 993, 999 (9th Cir. 2007) (holding that the BIA is under “an
affirmative obligation to accept as true the facts stated in [a petitioner’s] affidavit
in ruling upon his motion to reopen unless it finds those facts to be inherently
unbelievable”) (citations omitted). The error was harmless, however, because the
BIA properly denied the underlying IAC claim on the merits.
3. “When considering the merits of a motion to reopen premised on
ineffective assistance of counsel, the BIA asks whether counsel’s performance was
deficient, and whether the alien suffered prejudice. . . .” Singh v. Holder, 658 F.3d
879, 885 (9th Cir. 2011) (citation omitted). Cortes and Diaz argue that ineffective
assistance by their attorneys prejudiced their cancellation of removal claim because
counsel failed to establish extreme and unusual hardship to qualifying relatives.1
Counsel presented evidence at the removal hearing that Cortes’ Lawful
Permanent Resident (LPR) parents suffered from medical infirmities and required
his assistance. Nevertheless, the Immigration Judge (IJ) found that the parents
1 Petitioners also argued that the actions of a notario, from whom they had
sought help, could form the basis of an IAC claim supporting their motion to
reopen. We disagree. The record reflects that the notario’s actions bore no relation
to the fairness of the removal hearing that Petitioners later received. See Lara-
Torres v. Ashcroft, 383 F.3d 968, 973 (9th Cir. 2004).
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would not suffer extreme or unusual hardship because they possessed significant
assets and were (at least partially) supported by Cortes’ brother. Counsel
diligently, albeit unsuccessfully, elicited testimony from Cortes to refute this
conclusion.2 Counsel also presented evidence that Petitioners’ United States
citizen children would be deprived of educational and cultural opportunities in
Mexico.
By contrast, in Morales Apolinar v. Mukasey, 514 F.3d 893, 898-99 (9th Cir.
2008), we concluded that counsel was ineffective because he failed to elicit
testimony, introduce available documentary evidence, or establish that an alien’s
mother was a qualifying relative for purposes of the hardship analysis. Unlike
Morales Apolinar, Cortes’ counsel presented evidence that Cortes’ parents were
LPRs and would suffer from his removal. Additionally, counsel questioned Cortes
at length, eliciting testimony of potential hardship to his parents and children.
Despite these efforts, the IJ found such harms inadequate to warrant cancellation of
removal.
2 Although the IJ noted that the absence of live testimony from the parents
deprived her of the “best evidence” of the impact of Cortes’ removal, when the IJ
asked Cortes why his parents were not present, he replied that they were “sick” and
“very nervous.”
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Petitioners do not identify other available evidence that could have
established the requisite hardship. Accordingly, the BIA did not abuse its
discretion in finding a lack of prejudice to Cortes and Diaz. See Kwong v. Holder,
671 F.3d 872, 881 (9th Cir. 2011) (concluding that performance was not deficient
where the attorney elicited testimony from petitioner and presented sufficient
evidence to permit the IJ to make a reasoned decision).
4. Petitioners also argue that counsel’s actions prevented them from
filing a petition for review of the BIA’s decision reviewing the IJ’s denial of
cancellation of removal. Because Petitioners did not raise this issue before the BIA
and support the claim with legal argument, we lack jurisdiction over this legal
claim. See Abebe v. Mukasey, 554 F.3d 1203, 1208 (9th Cir. 2009) (en banc) (per
curiam); see also Ghahremani v. Gonzales, 498 F.3d 993, 997 (9th Cir. 2007).
PETITION DENIED.
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