NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 20 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT SERGEY ANATOLYEVICH No. 21-113 MIKHALENKO, Agency No. A076-058-341 Petitioner, v. MEMORANDUM* MERRICK B. GARLAND, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Argued and Submitted March 30, 2023 San Francisco, California Before: M. SMITH and OWENS, Circuit Judges, and RODRIGUEZ, District Judge.** Sergey Mikhalenko, a citizen of Kazakhstan, petitions for review from the Board of Immigration Appeals’ (“BIA”) denial of his second motion to reopen his removal proceedings based on the vacatur of his state conviction and a fundamental change in law. The BIA held that sua sponte reopening was not * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Xavier Rodriguez, United States District Judge for the Western District of Texas, sitting by designation. warranted because Mikhalenko’s conviction was valid at the time he was removed, his removal was correct under the law at the time it was ordered, and Mikhalenko was not diligent in raising the fundamental change in law argument. As the parties are familiar with the facts, we do not recount them here. We deny the petition. We have jurisdiction to review the BIA’s decisions regarding statutory motions to reopen, see Bonilla v. Lynch, 840 F.3d 575, 581 (9th Cir. 2016), but we may review the BIA’s denial of sua sponte reopening only for legal or constitutional error, id. at 588. We review questions of law de novo and the denial of a motion to reopen for abuse of discretion. Lara-Garcia v. Garland, 49 F.4th 1271, 1275 (9th Cir. 2022). The agency abuses its discretion when its decision is “arbitrary, irrational, or contrary to law.” Bonilla, 840 F.3d at 581 (citation omitted). 1. Mikhalenko admits that his statutory motion was untimely but argues that it should be equitably tolled. He contends that the BIA abused its discretion by failing to address his equitable tolling argument. Although the BIA did not expressly review equitable tolling, we do not remand because to do so would be futile. See Lona v. Barr, 958 F.3d 1225, 1231 n.7 (9th Cir. 2020). Equitable tolling applies where the petitioner “is prevented from filing because of deception, fraud, or error, as long as the petitioner acts with due diligence.” Id. at 1230 (quoting Iturribarria v. INS, 321 F.3d 889, 897 (9th Cir. 2003)). To assess whether the petitioner acted with due diligence, the court 2 21-113 considers, inter alia, “whether petitioner made reasonable efforts to pursue relief.” Avagyan v. Holder, 646 F.3d 672, 679 (9th Cir. 2011). There is no evidence in the record that Mikhalenko attempted to meet with immigration counsel or pursued relief in some other way between 2009 when he was ordered removed and 2019 when he retained counsel. And we have previously upheld BIA determinations that a failure to act over a much …
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