NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 24 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT Emmanuel Quiaoit Anos, No. 21-729 Petitioner, Agency No. A200-247-335 v. MEMORANDUM* Merrick B. Garland, U.S. Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted March 15, 2023** Pasadena, California Before: LEE, BRESS, MENDOZA, Circuit Judges. Emmanuel Quiaoit Anos, a native and citizen of the Philippines, petitions for review of an order from the Board of Immigration Appeals (BIA) dismissing his appeal from an Immigration Judge’s (IJ) denial of a motion to reopen. We have jurisdiction under 8 U.S.C. § 1252(a). We deny the petition. * 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). We review the denial of a motion to reopen for abuse of discretion and will reverse the agency’s decision only if it is “arbitrar[y], irrationa[l], or contrary to law.” Cano-Merida v. INS, 311 F.3d 960, 964 (9th Cir. 2002) (citation and quotation marks omitted). When the BIA adopts the reasoning of the IJ and adds some of its own reasoning, we review both decisions. Nehad v. Mukasey, 535 F.3d 962, 966 (9th Cir. 2008). But for a few limited exceptions, a motion to reopen “must be filed no later than 90 days after the date on which the final administrative decision was rendered in the proceeding sought to be reopened.” 8 C.F.R. § 1003.2(c)(2). Here, Anos was granted pre-conclusion voluntary departure on November 6, 2018. Anos did not, however, depart the United States within the required 120 days. 8 U.S.C.A. § 1229c. Instead, Anos remained in the United States until he was apprehended by the Department of Homeland Security in December 2020. On January 12, 2021, Anos filed a motion to reopen with the IJ. Despite filing his motion to reopen approximately two years too late, Anos argues that the agency erred in denying the motion because: (1) he established equitable tolling was warranted; (2) country conditions in the Philippines had materially changed such that he was eligible for asylum, withholding or removal, and/or protection under the Convention Against Torture (CAT); and (3) he would potentially be eligible for adjustment of status based on his recent engagement to a U.S. legal permanent resident. 1. The BIA did not abuse its discretion in concluding Anos failed to 2 21-729 establish equitable tolling was warranted. Equitable tolling of the time in which to file a motion to reopen may be available “when a petitioner is prevented from filing because of deception, fraud, or error, as long as the petitioner acts with due diligence in discovering the deception, fraud, or error” or when “despite all due diligence,” the petitioner “is unable to obtain vital information bearing on the existence of the claim.” Lona v. Barr, 958 F.3d …
Original document
Source: All recent Immigration Decisions In All the U.S. Courts of Appeals