                                                                           FILED
                            NOT FOR PUBLICATION
                                                                            SEP 09 2015
                       UNITED STATES COURT OF APPEALS                   MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                             FOR THE NINTH CIRCUIT


ANITA REYES GUALAJARA,                           No. 12-71994

              Petitioner,                        Agency No. A095-315-441

 v.
                                                 MEMORANDUM*
LORETTA E. LYNCH, Attorney General,

              Respondent.


                       On Petition for Review of an Order of the
                           Board of Immigration Appeals

                            Submitted August 28, 2015**
                              San Francisco, California

Before: THOMAS, Chief Judge and HAWKINS and McKEOWN, Circuit Judges.

      Anita Reyes Gualajara, a native and citizen of Mexico, appeals the decision

of the Board of Immigration Appeals denying her second motion to reopen her

removal proceedings. We have jurisdiction under 8 U.S.C. § 1252. We deny the

petition for review.

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 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 BIA’s denial of a motion to reopen removal proceedings for

abuse of discretion. Toufighi v. Mukasey, 538 F.3d 988, 992 (9th Cir. 2008). The

Court defers to the BIA’s exercise of discretion unless the Board acted arbitrarily,

irrationally, or contrary to law. Singh v. INS, 295 F.3d 1037, 1039 (9th Cir. 2002).

      A petitioner is limited to one motion to reopen her removal proceedings, and

the motion must be filed within 90 days of the final administrative decision.

8 U.S.C. § 1229a(c)(7); 8 C.F.R. § 1003.2(c)(2). However, we permit equitable

tolling of “deadlines and numerical limits on motions to reopen or reconsider

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 determining whether to equitably toll the deadlines and numerical

limitations on motions to reopen on the basis of ineffective assistance of counsel,

we assess “when the tolling period should end; that is, when petitioner definitively

learns of the harm resulting from [her former] counsel’s deficiency, or obtains

‘vital information bearing on the existence of [her] claim.’” Avagyan v. Holder,

646 F.3d 672, 679 (9th Cir. 2011) (quoting Albillo-De Leon v. Gonzales, 410 F.3d

1090, 1100 (9th Cir. 2005)). “In many cases, this occurs when the alien obtains a




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complete record of his immigration proceedings and is able to review that

information with competent counsel.” Id.

      Gualajara does not dispute that she has filed a second motion to reopen or

that the motion was filed after 90 days from the final administrative decision.

However, she claims the time and number limitations to filing a motion to reopen

should be equitably tolled due to her former attorneys’ ineffective assistance of

counsel and acts of fraud. Gualajara’s current attorney reviewed her case file on

October 6, 2011. Even assuming that Gualajara is able to demonstrate ineffective

assistance of counsel and fraud, she did not file her motion to reopen until

February 1, 2012, after the 90-day filing period expired. See Ghahremani v.

Gonzales, 498 F.3d 993, 1000 (9th Cir. 2007) (holding that the 90-day filing

deadline runs from the date the petitioner learns of a former attorney’s ineffective

representation).

      Gualajara’s arguments that the Court should equitably toll the time and

number limitations until the date of filing are not persuasive. Gualajara argues that

the filing deadline should be equitably tolled while she waited for DHS to respond

to her request to join in her motion to reopen her removal proceedings. This

argument is foreclosed by Valeriano v. Gonzales. 474 F.3d 669, 673-74 (9th Cir.

2007) (rejecting a petitioner’s request to equitably toll his filing deadline during


                                           3
the time petitioner was waiting for the INS to respond to his request for a joint

motion to reopen).

      Gualajara also argues that the panel should equitably toll the time and

number limitations during the time she was detained. But she does not

demonstrate how her detention prevented counsel from discovering any deception

or fraud on the part of her former attorneys. Her attorney was able to review her

file even while she was detained and could have discovered the alleged ineffective

representation at that time.

      Finally, Gualajara argues that she did not learn that her former attorneys had

posted a voluntary departure bond on her behalf until January 17, 2012. Even

accepting Gualajara’s claim as true, her current attorney would have learned about

her former attorneys’ alleged ineffective representation as soon as he reviewed her

file in October 2011.

      PETITION DENIED.




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