Case Explained: CERVANTES MONTOYA, ET AL. V. BLANCHE

Court: United States Court of Appeals for the Ninth Circuit Filed: 2026-08-11 The Ninth Circuit denied the petitions for review seeking to overturn the Board of Immigration Appeals’ (BIA) denial of a second motion to reopen removal proceedings based on claims of ineffective assistance of counsel. The court applied an abuse of discretion standard of review under 8 U.S.C. § 1252(b), holding that the BIA did not act arbitrarily, irrationally, or contrary to law in rejecting the motions. The court’s decision rests on three primary grounds. First, the BIA correctly determined that the second motion was numerically barred because it constituted a second attempt to reopen; under 8 U.S.C. § 1229a(c)(7)(A) and 8 C.F.R. § 1003.2(c)(2), an applicant is generally limited to filing only one motion to reopen, and motions claiming ineffective assistance of counsel are properly deemed motions to reopen. Second, the court found no basis for equitable tolling of this numerical limit, as Petitioners failed to demonstrate any extraordinary circumstance that prevented timely filing or showed due diligence, particularly given that the second motion was filed by the same counsel only nine days after the first and contained substantially similar arguments. Third, the BIA did not violate procedural due process by declining to consider the ineffective assistance claim because Petitioners failed to satisfy the threshold procedural requirements set forth in *Matter of Lozada*, 19 I. & N. Dec. 637 (BIA 1988). As a practical consequence, the petitions are denied, and the temporary stay of removal entered pursuant to General Order 6.4(c) is lifted effective immediately. Do It For The Case Law is a news reporting service. Nothing in this episode constitutes legal advice.