                                                                           FILED
                             NOT FOR PUBLICATION                           AUG 02 2013

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U.S. COURT OF APPEALS



                             FOR THE NINTH CIRCUIT


JOSE SALVADOR CORTES                             No. 08-74641
PIMENTEL, AKA Jose Salvador Cortez
Pimentel and MARIA ERIKA DIAZ                    Agency Nos.         A075-647-287
ORTIZ,                                                               A075-645-679

              Petitioners,
                                                 MEMORANDUM*
  v.

ERIC H. HOLDER, Jr., Attorney General,

              Respondent.


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

                       Argued and Submitted April 11, 2013
                              Pasadena, California

Before: RAWLINSON and BYBEE, Circuit Judges, and SIMON, District Judge.**




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable Michael H. Simon, District Judge for the U.S. District
Court for the District of Oregon, sitting by designation.

                                          1
      Petitioners Jose Salvador Cortes Pimentel (Cortes) and Maria Erika Diaz

Ortiz (Diaz) challenge the denial of their motion to reopen as untimely, and the

alternative denial of their claim of ineffective assistance of counsel (IAC).



      1.     We lack jurisdiction over Petitioners’ contention that the Board of

Immigration Appeals (BIA) erred by declining to sua sponte reopen their case. See

Minasyan v. Mukasey, 553 F.3d 1224, 1229 (9th Cir. 2009); Toufighi v. Mukasey,

538 F.3d 988, 993 & n.8 (9th Cir. 2007).



      2.     Equitable tolling of the deadline for filing a motion to reopen is

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. . . .” Iturribarria v. INS, 321 F.3d 889, 897 (9th Cir.

2003) (citations omitted). Cortes asserted by affidavit that he and Diaz believed

that counsel had prepared and filed their motion to reopen shortly after he was

hired. Accordingly, Cortes and Diaz “were left under the impression for more than

2 years that [their] motion to reopen had been filed and was pending.” Such claims

are not inherently implausible given the Petitioners’ prior experience with

immigration court delays. Accordingly, it was error for the BIA to decline to


                                           2
equitably toll the filing deadline for lack of diligence. See Ghahremani v.

Gonzales, 498 F.3d 993, 999 (9th Cir. 2007) (holding that the BIA is under “an

affirmative obligation to accept as true the facts stated in [a petitioner’s] affidavit

in ruling upon his motion to reopen unless it finds those facts to be inherently

unbelievable”) (citations omitted). The error was harmless, however, because the

BIA properly denied the underlying IAC claim on the merits.



      3.     “When considering the merits of a motion to reopen premised on

ineffective assistance of counsel, the BIA asks whether counsel’s performance was

deficient, and whether the alien suffered prejudice. . . .” Singh v. Holder, 658 F.3d

879, 885 (9th Cir. 2011) (citation omitted). Cortes and Diaz argue that ineffective

assistance by their attorneys prejudiced their cancellation of removal claim because

counsel failed to establish extreme and unusual hardship to qualifying relatives.1

      Counsel presented evidence at the removal hearing that Cortes’ Lawful

Permanent Resident (LPR) parents suffered from medical infirmities and required

his assistance. Nevertheless, the Immigration Judge (IJ) found that the parents

      1
         Petitioners also argued that the actions of a notario, from whom they had
sought help, could form the basis of an IAC claim supporting their motion to
reopen. We disagree. The record reflects that the notario’s actions bore no relation
to the fairness of the removal hearing that Petitioners later received. See Lara-
Torres v. Ashcroft, 383 F.3d 968, 973 (9th Cir. 2004).

                                            3
would not suffer extreme or unusual hardship because they possessed significant

assets and were (at least partially) supported by Cortes’ brother. Counsel

diligently, albeit unsuccessfully, elicited testimony from Cortes to refute this

conclusion.2 Counsel also presented evidence that Petitioners’ United States

citizen children would be deprived of educational and cultural opportunities in

Mexico.

      By contrast, in Morales Apolinar v. Mukasey, 514 F.3d 893, 898-99 (9th Cir.

2008), we concluded that counsel was ineffective because he failed to elicit

testimony, introduce available documentary evidence, or establish that an alien’s

mother was a qualifying relative for purposes of the hardship analysis. Unlike

Morales Apolinar, Cortes’ counsel presented evidence that Cortes’ parents were

LPRs and would suffer from his removal. Additionally, counsel questioned Cortes

at length, eliciting testimony of potential hardship to his parents and children.

Despite these efforts, the IJ found such harms inadequate to warrant cancellation of

removal.




      2
       Although the IJ noted that the absence of live testimony from the parents
deprived her of the “best evidence” of the impact of Cortes’ removal, when the IJ
asked Cortes why his parents were not present, he replied that they were “sick” and
“very nervous.”

                                           4
      Petitioners do not identify other available evidence that could have

established the requisite hardship. Accordingly, the BIA did not abuse its

discretion in finding a lack of prejudice to Cortes and Diaz. See Kwong v. Holder,

671 F.3d 872, 881 (9th Cir. 2011) (concluding that performance was not deficient

where the attorney elicited testimony from petitioner and presented sufficient

evidence to permit the IJ to make a reasoned decision).



      4.     Petitioners also argue that counsel’s actions prevented them from

filing a petition for review of the BIA’s decision reviewing the IJ’s denial of

cancellation of removal. Because Petitioners did not raise this issue before the BIA

and support the claim with legal argument, we lack jurisdiction over this legal

claim. See Abebe v. Mukasey, 554 F.3d 1203, 1208 (9th Cir. 2009) (en banc) (per

curiam); see also Ghahremani v. Gonzales, 498 F.3d 993, 997 (9th Cir. 2007).



      PETITION DENIED.




                                          5
