FILED NOT FOR PUBLICATION JUN 23 2022 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT SANTOS TOMASA PABLO CALMO; No. 20-73423 B.P.C., Agency Nos. A208-311-888 Petitioners, A208-311-887 v. MEMORANDUM* MERRICK B. GARLAND, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Argued and Submitted June 8, 2022 Portland, Oregon Before: SCHROEDER and SUNG, Circuit Judges, and ANTOON,** District Judge. Santos Pablo Calmo, an indigenous Mayan Mam woman from Guatemala, petitions for review of the order of the Board of Immigration Appeals (“BIA”) * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable John Antoon II, United States District Judge for the Middle District of Florida, sitting by designation. denying her motion to reissue the dismissal of her asylum proceedings. She argues that reissuance is warranted because the ineffective assistance of her former counsel—specifically, counsel’s failure to advise her that the BIA had denied her appeal—prevented her from timely appealing the BIA’s decision. The parties agree that our review is for abuse of discretion. See Hernandez-Velasquez v. Holder, 611 F.3d 1073, 1077 (9th Cir. 2010); see also Coyt v. Holder, 593 F.3d 902, 904 n.1 (9th Cir. 2010) (“A motion to reissue is treated as a motion to reopen.”) (internal citations omitted). The ninety-day deadline for a motion to reissue, 8 U.S.C. § 1229a(c)(7)(C), is subject to equitable tolling for ineffective assistance if petitioner can show, among other things, the exercise of due diligence in discovering her former counsel’s error. See Singh v. Holder, 658 F.3d 879, 884 (9th Cir. 2011). The BIA concluded that Pablo Calmo did not exercise due diligence because she did not seek new counsel for two years after her former counsel stopped returning her calls in October 2017. The BIA also based its decision on its assertion that petitioner tried to call her attorney only one time after the attorney’s last attempted contact in October 2017, even though Pablo Calmo stated in her declaration that she tried to call at least four times. The government maintains there was no abuse of discretion. 2 In October 2017, however, Pablo Calmo had no reason to suspect her former counsel of misconduct. She had paid her former counsel $8,000 to represent her before the IJ, and her counsel had done so. Moreover, she had paid her former counsel an additional $2,500 to represent her on appeal before the BIA, and she reasonably expected her counsel to continue to advocate on her behalf. Pablo Calmo’s former counsel’s failure to take action on her behalf did not occur until July 2018, when counsel did not timely inform Pablo Calmo of the BIA’s decision. Pablo Calmo could not have reasonably suspected the error underlying her motion before that time. See Avagyan v. Holder, 646 F.3d 672, 679 (9th Cir. 2011) (“In order to assess whether petitioner exercised due diligence . . . we …
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