NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS FEB 26 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT LUIS EDUARDO MALDONADO- No. 15-73281 GOMEZ, AKA Luis M. Gomez, Agency No. A072-543-121 Petitioner, v. MEMORANDUM* WILLIAM P. BARR, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted February 8, 2019** Pasadena, California Before: GOULD and NGUYEN, Circuit Judges, and MARBLEY,*** District Judge. Petitioner Luis Eduardo Maldonado-Gomez appeals the Board of Immigration Appeals’ (“BIA”) denial of his motion to reopen removal * 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). *** The Honorable Algenon L. Marbley, United States District Judge for the Southern District of Ohio, sitting by designation. proceedings. We have jurisdiction under 8 U.S.C. § 1252(a). Because the BIA did not abuse its discretion, we deny the petition. On September 21, 2005, Maldonado-Gomez’s counsel conceded his removability and did not apply for cancellation of removal. Nearly ten years later, on February 12, 2015, Maldonado-Gomez filed his petition to reopen, alleging ineffective assistance of counsel because his former counsel did not raise cancellation of removal. Maldonado-Gomez claims he discovered the alleged ineffective assistance on August 4, 2014, when he spoke to a new attorney for the first time about the September 2005 removal. Maldonado-Gomez argues that he is entitled to equitable tolling due to his former counsel’s error. The time limit for filing a motion to reopen is ninety days from the final order of removal. 8 U.S.C. § 1229a(c)(7)(C)(i). The deadline for motions to reopen may be equitably tolled during “periods 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.” Iturribarria v. INS, 321 F.3d 889, 897 (9th Cir. 2003). When evaluating due diligence, courts consider (1) if a reasonable person in petitioner’s position would suspect the error; (2) if petitioner “took reasonable steps to investigate” the error or if ignorant of the error, whether petitioner “made reasonable efforts to pursue relief”; and (3) when 2 petitioner “definitively learns” of the harm. Avagyan v. Holder, 646 F.3d 672, 679 (9th Cir. 2011). Even assuming that his former counsel was ineffective, Maldonado-Gomez has failed to show that he acted diligently during the nearly ten-year delay. Cf. Socop-Gonzalez v. INS, 272 F.3d 1176, 1183 (9th Cir. 2001) (finding equitable tolling when an Immigration and Naturalization service officer provided incorrect advice to petitioner but petitioner hired counsel within about three months); Fajardo v. INS, 300 F.3d 1018, 1019 (9th Cir. 2002) (finding equitable tolling after a roughly five-year delay where the petitioner acted diligently by seeking new counsel after two non-attorneys deceived her and provided inadequate legal services); Luna v. Holder, 659 F.3d 753, 760–61 (9th Cir. 2011) ...
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