22-6268-ag Mendoza Martinez v. Garland BIA Hochul, IJ A206 471 650

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 10th day of September, two thousand twenty-four.

PRESENT: GERARD E. LYNCH, MICHAEL H. PARK, SARAH A. L. MERRIAM, Circuit Judges. _____________________________________

GAUDENCIO MENDOZA MARTINEZ, Petitioner,

v. 22-6268

MERRICK B. GARLAND, UNITED STATES ATTORNEY GENERAL, Respondent. _____________________________________ FOR PETITIONER: Paul O’Dwyer, Law Office of Paul O’Dwyer P.C., New York, NY.

FOR RESPONDENT: Brian Boynton, Assistant Attorney General; Russell J.E. Verby, Tim Ramnitz, Senior Litigation Counsel, Office of Immigration Litigation, United States Department of Justice, Washington, D.C.

UPON DUE CONSIDERATION of this petition for review of a Board of

Immigration Appeals (“BIA”) decision, it is hereby ORDERED, ADJUDGED, AND

DECREED that the petition for review is DENIED.

Petitioner Gaudencio Mendoza Martinez, a native and citizen of Mexico,

seeks review of a May 10, 2022, decision of the BIA affirming a September 8, 2020,

decision of an Immigration Judge (“IJ”) denying his motion to reopen his removal

proceedings. See In re Gaudencio Mendoza Martinez, No. A206 471 650 (B.I.A. May

10, 2022), aff’g No. A206 471 650 (Immigr. Ct. Buffalo Sept. 8, 2020). We assume

the parties’ familiarity with the underlying facts and procedural history.

We review the BIA’s denial of a motion to reopen for abuse of discretion,

and we review factual findings for substantial evidence. See Jian Hui Shao v.

Mukasey,

, 168–69 (2d Cir. 2008). A party generally may move to

reopen removal proceedings no later than 90 days after the date on which the final

2 removal ordered was rendered. See 8 U.S.C. § 1229a(c)(7)(C)(i);

(b)(1).

Mendoza Martinez filed a motion to reopen his removal proceedings in July

2020, which was more than two years after the IJ ordered him removed in October

2017. He argues that the agency erred in finding his motion untimely under

8 U.S.C. § 1229a(c)(7)(C)(i) because it was akin to a motion to rescind a removal

order entered in absentia, for which there is no time limitation if the movant did

not receive a hearing notice. That argument fails because under the relevant

statute, motions to rescind in absentia removal orders may be filed “at any time,”

8 U.S.C. § 1229a(b)(5)(C)(ii), only where the removal order was entered upon the

movant’s failure to appear at a hearing due to lack of notice, or because the movant

was in custody and unable to appear. See 8 U.S.C. § 1229a(b)(5). In contrast,

Mendoza Martinez’s removal order was issued between hearings after he had

appeared, conceded removability, and failed to timely apply for any relief from

removal. The order was not issued because of his failure to appear at a hearing.

Therefore, as the agency concluded, Mendoza Martinez’s motion to reopen was

subject to the 90-day filing deadline for motions to reopen removal proceedings

3 and his motion, which was filed more than two years after his removal order, was

untimely. See 8 U.S.C. § 1229a(c)(7)(C)(i);

(b)(1).

Ineffective assistance may provide a basis for equitable tolling. See Cekic v.

INS,

(2d Cir. 2006). To prevail on a claim of ineffective assistance

of counsel, a movant must show “that competent counsel would have acted

otherwise,” and “that he was prejudiced by his counsel’s performance.” Rashid

v. Mukasey,

(2d Cir. 2008) (citation and quotation marks omitted).

Even if a movant establishes that prior counsel was ineffective and caused

prejudice, equitable tolling requires a demonstration of “due diligence” in

pursuing the ineffective assistance claim during “both the period of time before

the ineffective assistance of counsel was or should have been discovered and the

period from that point until the motion to reopen is filed.”

; see also Cekic,

. “[N]o matter how egregiously ineffective counsel’s assistance

may have been, an alien will not be entitled to equitable tolling unless he can

affirmatively demonstrate that he exercised reasonable due diligence in pursuing

his claim.” Rashid,

(citation and quotation marks omitted).

The agency reasonably concluded that Mendoza Martinez failed to

4 demonstrate due diligence. Mendoza Martinez stated that his former attorney

informed him at the end of 2017 that the IJ had ordered him removed. He did not

learn that he could seek reopening until hiring his current attorney in 2019, and he

then filed a complaint against his former attorney in April 2020 and moved to

reopen in July 2020. Because Mendoza Martinez did not allege that he took any

action in his case between late 2017 and 2019, which far exceeded the 90-day

deadline usually afforded movants to file for reopening, the agency did not err in

finding he failed to show that he acted diligently in pursuing reopening based on

ineffective assistance during that time. See Jian Hua Wang v. BIA,

(2d Cir. 2007) (“We have previously held that a petitioner who waits two years

or longer to take steps to reopen a proceeding has failed to demonstrate due

diligence.”). Mendoza Martinez does not challenge the diligence finding here.

Mendoza Martinez’s failure to act diligently is dispositive because diligence

was required to toll the time for filing the motion to reopen; thus, we need not

consider the agency’s alternative dispositive findings that he failed to establish a

prima facie case for the underlying relief sought or to show that his concession of

removability should be withdrawn. See Rashid,

; see also INS v.

5 Bagamasbad,

(1976) (“As a general rule courts and agencies are not

required to make findings on issues the decision of which is unnecessary to the

results they reach.”).

For the foregoing reasons, the petition for review is DENIED. All pending

motions and applications are DENIED and stays VACATED.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court

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