NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUN 11 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT CRISTINA GUADALUPE MARTINEZ DE No. 15-73503 ESTRADA, Agency No. A094-195-429 Petitioner, v. MEMORANDUM* WILLIAM P. BARR, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted June 7, 2019** San Francisco, California Before: FARRIS, TROTT, and SILVERMAN, Circuit Judges. Cristina Guadalupe Martinez de Estrada, a native and citizen of El Salvador, petitions for review of the Board of immigration Appeals’ order denying her motion to reopen removal proceedings. We have jurisdiction under 8 U.S.C. § 1252. We review for abuse of discretion the denial of a motion to reopen. * 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). Avagyan v. Holder, 646 F.3d 672, 674 (9th Cir. 2011). We grant in part, deny in part, and dismiss in part the petition for review, and remand to the BIA for further proceedings consistent with this decision. We grant the petition on Martinez de Estrada’s claim that the BIA abused its discretion in denying Martinez de Estrada’s motion to reopen as untimely, and in holding that she was not entitled to equitable tolling based on her claim that she received ineffective assistance of counsel. First, a review of the record reflects that, contrary to the BIA’s finding, Martinez de Estrada did in fact substantially comply with the requirements of Matter of Lozada, 19 I. & N. Dec. 637 (BIA 1988). Correa-Rivera v. Holder, 706 F.3d 1128, 1131 (9th Cir. 2013). A fair reading of Martinez de Estrada’s Exhibits B and C indicate that she (1) provided an appropriate sworn declaration detailing the allegations against former counsel, (2) notified him of her specific allegations of ineffective representation, and (3) lodged a complaint with the California State Bar. Although her Exhibits B and C were not attached in the record to the letter to counsel, the letter references “Enclosures (2)”. We can only conclude that the “Enclosures (2)” were Exhibits B and C. Second, the agency failed to provide any explanation in support of its determination that petitioner was not prima facie eligible for an adjustment of status, and failed to address Martinez de Estrada’s argument that she would be eligible for a waiver of her convictions under 8 U.S.C. § 1182(h). See, e.g., Tadevosyan v. Holder, 743 2 15-73503 F.3d 1250, 1252-53 (BIA abuses its discretion when it fails to provide a reasoned explanation for its actions). Moreover, the agency did not have the benefit of this court’s recent decision in Ramirez v. Brown, 852 F.3d 954 (9th Cir. 2017), which held that a Temporary Protected Status recipient is considered “inspected and admitted” when determining the recipient’s eligibility for adjustment of status. We deny the petition for review on Martinez de ...
Original document
Source: All recent Immigration Decisions In All the U.S. Courts of Appeals