Background
Petitioner Bayron Vazquez-Mendez, a native and citizen of Guatemala, petitioned for review of the Board of Immigration Appeals’ denial of his motion to reopen. The motion was filed more than five years after the expiration of the ninety-day deadline. The petitioner argued that his counsel was ineffective for missing the filing deadline by six years.
The court’s reasoning
The court reviewed the denial of the motion to reopen and equitable tolling for abuse of discretion. To qualify for equitable tolling based on ineffective assistance of counsel, a petitioner must demonstrate that they were prevented from timely filing, showed due diligence in discovering the error, and complied with procedural requirements. The court found that while the petitioner claimed counsel admitted to the error, he failed to show he demonstrated due diligence in discovering that error during the nearly six years that followed. The court measured diligence from the date a reasonable person would be put on notice, which was September two thousand eighteen, not two thousand twenty-four. The petitioner provided no facts suggesting he pursued his rights diligently during the intervening years. Consequently, the court determined that remanding the case would serve no purpose as it was obvious the agency would deny equitable tolling.
We deny the petition for review. The BIA did not err by denying Vazquez-Mendez’s request for equitable tolling and denying his motion to reopen as untimely when he filed it more than five years after the expiration of the ninety-day deadline for such motions.
What it means going forward
The petition for review is denied, and the Board of Immigration Appeals’ order denying the motion to reopen stands. The temporary stay of removal remains in place until the mandate issues.