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United States Court of Appeals, Ninth Circuit.

Adriana ESCALANTE-RECINOS, Petitioner, v. Robert M. WILKINSON, Acting Attorney General, Respondent.

No. 19-70907

Decided: January 28, 2021

Before: McKEOWN, CALLAHAN, and BRESS, Circuit Judges. Saad Ahmad, Attorney, Fremont, CA, for Petitioner Jennifer A. Bowen, Trial Attorney, Anthony Cardozo Payne, Senior Litigation Counsel, DOJ - U.S. Department of Justice, Civil Division/Office of Immigration Litigation, Washington, DC, Chief Counsel ICE, Office of the Chief Counsel, Department of Homeland Security, San Francisco, CA, for Respondent


Adriana Escalante-Recinos, a native and citizen of El Salvador, petitions for review of the Board of Immigration Appeals’ (“BIA”) order denying her motion to reopen deportation proceedings based on ineffective assistance of counsel. We have jurisdiction under 8 U.S.C. § 1252. We review for abuse of discretion the denial of a motion to reopen. Mohammed v. Gonzales, 400 F.3d 785, 791 (9th Cir. 2005). We deny the petition for review.

The BIA did not abuse its discretion in denying Escalante-Recinos's untimely motion to reopen for failure to demonstrate she acted with the due diligence required for equitable tolling. See 8 U.S.C. § 1229a(c)(7)(C)(i); Singh v. Holder, 658 F.3d 879, 884 (9th Cir. 2011) (“To qualify for equitable tolling on account of ineffective assistance of counsel, a petitioner must demonstrate ․ due diligence in discovering counsel's fraud or error․”); Avagyan v. Holder, 646 F.3d 672, 679 (9th Cir. 2011) (listing factors relevant to the diligence inquiry).

In light of this disposition, we do not address Escalante-Recinos's contentions regarding prejudice and that the BIA incorrectly applied Matter of Lozada, 19 I. & N. Dec. 637 (BIA 1988). See Simeonov v. Ashcroft, 371 F.3d 532, 538 (9th Cir. 2004) (the courts are not required to make findings on issues the decision of which is unnecessary to the results).


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