Rogelio De La Cruz Ceda v. MERRICK B. GARLAND, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ROGELIO DE LA CRUZ CEDA,
Petitioner,
v.
MERRICK B. GARLAND, Attorney
General,
Respondent.
No. 21-1099
Agency No.
A074-410-662
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted June 28, 2023**
Pasadena, California
Before: SMITH, N.R., LEE, and VANDYKE, Circuit Judges.
Rogelio De La Cruz Ceda, a native and citizen of Mexico, seeks review of
the Board of Immigration Appeals’ (BIA) order denying his motion to reopen
removal proceedings. We have jurisdiction under 8 U.S.C. § 1252, and review
for abuse of discretion. Singh v. Holder, 658 F.3d 879, 885 (9th Cir. 2011). We
* 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).
FILED
JUL 10 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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deny in part and dismiss in part the petition.
1. The BIA did not abuse its discretion in denying De La Cruz Ceda’s
untimely motion to reopen. A motion to reopen must be filed within 90 days of
the entry of the final order of removal but he did not file his motion until two
years after the final order had been issued. 8 C.F.R. § 1003.2(c)(2).
De La Cruz Ceda argues, however, that the BIA should have equitably
tolled the deadline because of ineffective assistance of counsel. “To qualify for
equitable tolling on account of ineffective assistance of counsel, a petitioner must
demonstrate (a) that he was prevented from timely filing his motion due to prior
counsel’s ineffectiveness; (b) that he demonstrated due diligence in discovering
counsel’s fraud or error; and (c) that he complied with the procedural
requirements of Matter of Lozada, 19 I. & N. Dec. 637 (BIA 1988).” Singh, 658
F.3d at 884.
He has not met any of the three requirements to equitably toll the deadline
for the motion to reopen.
First, De La Cruz Ceda failed to establish that he was prevented from
timely filing his motion to reopen because of his prior counsel’s ineffective
assistance. His motion and accompanying declaration allege that his prior
counsel failed to present evidence that was “material to his case,” including:
(1) that he was a victim of domestic violence at the hands of his ex-wife; (2) that
he had custody of his children pursuant to a court order and took them to therapy
on a weekly basis; (3) that he was married to a U.S. citizen who was a cancer

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survivor; and (4) that he had an approved I-130 based on his marriage to a U.S.
citizen. But none of the evidence justifies why it took De La Cruz Ceda over two
years to file his motion. See id. (noting that to qualify for equitable tolling based
on ineffective assistance of counsel, a petitioner must demonstrate he was
prevented from timely filing his motion due to prior counsel’s ineffectiveness).
Second, because De La Cruz Ceda does not state when he discovered his
prior counsel’s error, the BIA correctly determined that it could not assess
whether De La Cruz Ceda exercised “due diligence” in discovering it. See id.
(noting that to qualify for equitable tolling based on ineffective assistance of
counsel, a petitioner must demonstrate he exercised due diligence in discovering
prior counsel’s fraud or error).
Third, De La Cruz Ceda failed to comply with the procedural requirements
of Lozada. See id. (noting that to qualify for equitable tolling based on ineffective
assistance of counsel, a petitioner must generally demonstrate he complied with
the procedural requirements of Lozada). Under Lozada, a party alleging
ineffective assistance must: “1) submit an affidavit explaining his agreement with
prior counsel regarding his legal representation, 2) present evidence that prior
counsel has been informed of the allegations against her and given an opportunity
to respond, [and] 3) either show that a complaint against prior counsel was filed
with the proper disciplinary authorities or explain why no such complaint was
filed.” Iturribarria v. I.N.S., 321 F.3d 889, 900 (9th Cir. 2003). The BIA
correctly noted that De La Cruz Ceda failed to present evidence that he informed

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his prior counsel of his allegation of ineffective assistance or that he filed a
complaint against his prior counsel as required by Lozada. See Tamang v.
Holder, 598 F.3d 1083, 1090–91 (9th Cir. 2010).
We also cannot excuse his failure to strictly comply with the Lozada
requirements because the counsel’s error is not plain from the record. See
Salazar-Gonzalez v. Lynch, 798 F.3d 917, 920 n.2 (9th Cir. 2015) (“Strict
compliance with Lozada is not always necessary for equitable tolling.”). De La
Cruz Ceda argues that the BIA could have potentially granted relief had his
attorney advised the agency that he became married to a U.S. citizen before his
final hearing.1 But it is not plain from the record when De La Cruz Ceda told his
counsel about his marriage, so we cannot assess whether his lawyer actually
provided ineffective assistance of counsel.
2. We lack jurisdiction to review the BIA’s decision that De La Cruz
Ceda’s case does not present an “exceptional situation” meriting sua sponte
reopening under 8 C.F.R. § 1003.2(a). See Bonilla v. Lynch, 840 F.3d 575, 588
(9th Cir. 2016) (noting we may review an agency’s decision to decline sua sponte
reopening only for “legal or constitutional error”).
Petition DENIED in part and DISMISSED in part.
1 The BIA incorrectly stated that De La Cruz got married “after his final hearing.”
The record reflects that De La Cruz got married after the evidentiary record was
closed but before his final hearing.

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