Eber Portillo-Hercules v. Merrick Garland

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUN 8 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT EBER ISAI PORTILLO-HERCULES, No. 18-72344 Petitioner, Agency No. A200-901-757 v. MEMORANDUM* MERRICK B. GARLAND, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Argued and Submitted April 14, 2021 San Francisco, California Before: SCHROEDER, RAWLINSON, and BADE, Circuit Judges. Eber Isai Portillo-Hercules, a citizen and native of El Salvador, petitions for review of the Board of Immigration Appeals’ (“BIA”) denial of his motion to reopen his removal proceedings. We have jurisdiction pursuant to 8 U.S.C. § 1252, and we deny the petition. 1. Portillo-Hercules asserts the BIA erred in denying his motion to * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. reopen his removal proceedings for ineffective assistance of counsel as untimely. The BIA applied the correct legal standard and did not abuse its discretion in concluding that Portillo-Hercules is not entitled to equitable tolling because the record supports that he failed to show he acted with due diligence. See Avagyan v. Holder, 646 F.3d 672, 678–79 (9th Cir. 2011). There is no evidence that Portillo-Hercules investigated his prior attorneys’ performance after he had reason to suspect that they performed deficiently when he decided he needed a new attorney once the BIA denied his appeal in January 2013. See id. at 678–81. The record supports the BIA’s determination that Portillo- Hercules did not demonstrate that he has cognitive difficulties that prevented him from recognizing his prior attorneys’ deficient performance. Not only did Portillo- Hercules promptly retain a new attorney about a month after the BIA denied his appeal, but he also brought potentially relevant evidence to his prior attorney’s attention on his own initiative. These actions support the BIA’s conclusion that Portillo-Hercules was able to understand the BIA’s decision denying his appeal, and thus, his duty to investigate began when he learned the BIA denied his appeal. See id. at 680–81. Therefore, the BIA did not err in concluding that Portillo- Hercules failed to establish he is entitled to equitable tolling. See id. 2. To the extent that Portillo-Hercules suggests that the BIA failed to review affidavits and other evidence relating to his cognitive difficulties, we 2 presume that the BIA reviewed all the evidence. Fernandez v. Gonzales, 439 F.3d 592, 603 (9th Cir. 2006). Moreover, the affidavits are cumulative of the objective medical evidence indicating a head injury causing memory problems, an inability to effectively communicate, and hearing impairment. The BIA expressly considered that evidence but nevertheless denied equitable tolling on the basis of the evidence that he “understood the import of the [BIA’s] decision and subsequently consulted with attorneys regarding his legal options.” The record supports that conclusion. 3. The BIA did not abuse its discretion in denying Portillo-Hercules’ motion to reopen based on changed country conditions. See Ramirez-Munoz v. Lynch, 816 F.3d 1226, 1229–30 …

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