Full Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS OCT 26 2026 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT MARIA GUZMAN VELASCO; CAMILA No. 24-2429 ECHEVERRIA GUZMAN; NAYELI Agency Nos. ECHEVERRIA GUZMAN, A220-490-474 A220-490-475 Petitioners, A220-490-476 v. MEMORANDUM* TODD BLANCHE, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted October 20, 2026 ** San Francisco, California Before: CALLAHAN and LEE, Circuit Judges, and EZRA, District Judge.*** Maria Guzman-Velasco, a Salvadoran, seeks review of the denial of her motion to reopen by the Board of Immigration Appeals (“BIA”) on behalf of * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable David A. Ezra, United States District Judge for the District of Hawaii, sitting by designation. herself and her minor children, Camila Echeverria-Guzman and Nayeli Echeverria- Guzman (collectively “Petitioners”). Petitioners filed their motion to reopen after their appeal of an Immigration Judge’s decision was dismissed by the BIA because they did not file their opening brief. Petitioners contend that they failed to file the brief because the electronic notice of the briefing schedule sent by the BIA was diverted to their attorney’s spam email folder. The BIA declined to recognize their attorney’s failure to identify the electronic correspondence containing the briefing schedule in his firm’s spam folder as justifying equitable tolling under the circumstances of their case. We deny Petitioners’ timely filed petition for review. A denial of a motion to reopen is reviewed for abuse of discretion and relief can only be granted if the BIA’s decision is arbitrary, irrational, or contrary to law. Kaur v. Garland, 2 F.4th 823, 829 (9th Cir. 2021). Petitioners have not shown that the BIA abused its discretion in denying them equitable tolling. “Equitable tolling is available when ‘some extraordinary circumstance stood in [the petitioner’s] way and prevented timely filing,’ and the petitioner acted with ‘due diligence’ in pursuing the petitioner’s rights.” Eskilian v. Bondi, 172 F.4th 682, 687 (9th Cir. 2026) (quoting Lona v. Barr, 958 F.3d 1225, 1230-32 (9th Cir. 2020)). However, attorneys have an obligation to “vigilantly monitor their email inboxes, including spam folders, for service notifications from [the Executive Office for Immigration Review (“EOIR”)], just as a person would 2 24-2429 for any important email communication.” EOIR Electronic Case Access and Filing, 86 Fed. Reg. 70708, 70710 (Dec. 13, 2021). Petitioners do not contest that the BIA sent the briefing schedule to the email provided by their attorney, thus the BIA was neither “arbitrary” nor “irrational” in determining that their attorney’s failure to check his spam folder was not an exceptional circumstance warranting equitable tolling. The BIA’s decision was also consistent with its decision in Matter of Arciniegas-Patino, et al., 28 I. & N. Dec. 883, 886 (BIA 2025); it held that where the “parties were properly served with electronic notice of the briefing schedule, a representative’s failure to diligently monitor the inbox, including the spam folder, of the email address of record does not excuse a party’s failure to comply with briefing deadlines.” There, the BIA explained that there was an insufficient basis for reconsideration where “[t]he respondents’ counsel [did] not dispute that she received the email notification regarding the briefing schedule…[and did not] indicate what efforts she or members of her staff made to monitor incoming email, given her awareness of the pending appeal in this case.” Id. Similarly, Petitioners here knew about their obligation to file an opening brief. Petitioners filed a Notice of Appeal (“NOA”) and checked the “Yes” box in response to the question, “Do you intend to file a separate written brief or statement after filing this [NOA]?” The NOA included a warning that the BIA 3 24-2429 may summarily dismiss an appeal if an applicant checked the “Yes” box but failed to file a written brief within the timeframe set in the briefing schedule later issued. Given that the BIA sent electronic notice to the address provided by Petitioners’ counsel, the fact that Petitioners were aware of their obligation to file a brief, and the BIA’s consistent perspective on the issue, Petitioners have not shown that the BIA abused its discretion in denying their motion to reopen. Petitioners’ counterarguments are unpersuasive. While Matter of Morales- Morales, 28 I. & N. Dec. 714, 718 (BIA 2023), suggests that the BIA could equitably toll the deadline for an untimely brief, as they can for an NOA, it also reaffirms that the BIA has the discretion to refuse to do so where it finds the circumstances to be unexceptional. Although In re G-Y-R-, 23 I. & N. Dec. 181, 183 (BIA 2001), indicates that granting a motion to reopen is not discretionary where the motion is based on lack of notice of the proceedings, here, Petitioners received the briefing schedule sent to the email address provided by their counsel. Thus, neither case undermines the BIA’s determination that Petitioners did not present extraordinary circumstances that merit equitable relief. Petitioners have also not shown that the BIA erred in declining to reopen their appeal sua sponte. The Ninth Circuit’s jurisdiction to review the denial of sua sponte reopening is limited to determining whether the BIA based its decision on legal or constitutional error. Bonilla v. Lynch, 840 F.3d 575, 581 (9th Cir. 4 24-2429 2016). As Petitioners’ single sentence request for sua sponte relief provided no supporting facts or legal arguments, they cannot show that the BIA’s denial of relief was legal or constitutional error. The petition for review is DENIED. 5 24-2429