Benjamin Flores Saldana v. Merrick Garland

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUL 25 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT BENJAMIN FLORES SALDANA, AKA No. 20-71472 Benjamin Lopez, Agency No. A095-764-164 Petitioner, v. MEMORANDUM* MERRICK B. GARLAND, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted June 13, 2022** San Francisco, California Before: BYBEE, CALLAHAN, and COLLINS, Circuit Judges. Petitioner Benjamin Flores Saldana is a citizen of Mexico. Flores Saldana appeals the denial of a motion to reconsider relating to his application for immigration relief. 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). Flores Saldana unlawfully came to the United States in 1993 as a ten-year- old child. In 2007, Flores Saldana returned to Mexico and began trying to secure legal status to reside in the United States. In 2014, Flores Saldana and his family attempted to reenter the United States. Flores Saldana was taken into custody and served with a Notice to Appear. After he was released on bond and his hearing date was continued several times, Flores Saldana failed to appear at a hearing in October 2015, leading the immigration judge (“IJ”) to issue an order removing him in absentia. Flores Saldana filed a motion to rescind that order, which was granted, and a new hearing date was set. The hearing was eventually held in December 2017. There, the IJ told Flores Saldana that “all [immigration] relief applications and documents in support” were due by March 2, 2018. The IJ warned Flores Saldana that “failure to timely file the aforementioned documents will result in the conclusion that such applications are abandoned.” Despite these warnings, Flores Saldana did not submit any applications for immigration relief or protection from removal by the March 2018 deadline. A few days after the deadline, the IJ found that any applications for relief were abandoned, canceled Flores Saldana’s future immigration merits hearing, and ordered Flores Saldana’s removal. 2 Flores Saldana did not appeal this removal order. Instead, in April 2018, he filed a motion to reopen. Flores Saldana acknowledged his failure to meet deadlines. But he argued that (1) he had recently married a U.S. citizen and he was seeking an adjustment of status; and (2) his attorney had health issues that had prevented him from completing the application. The IJ concluded that the motion was not adequately supported by documentary evidence. The IJ also noted that Flores Saldana had been expressly warned about the consequences of failing to file his applications on time. The IJ observed that Flores Saldana’s attorney “repeatedly rendered ineffective assistance of counsel throughout [the] removal proceedings,” but found that Flores Saldana had not satisfied the requirements for bringing an ineffective assistance of counsel claim. The IJ denied the motion to reopen. …

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