Rodriguez-Sanchez v. Holder , 450 F. App'x 617 ( 2011 )

FILED
NOT FOR PUBLICATION SEP 19 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
ROBERTO RODRIGUEZ-SANCHEZ, No. 07-71014
aka Luis Roberto Rodriguez,
Agency No. A071-824-198
Petitioner,
v. MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted March 7, 2011 **
Pasadena, California
Before: RYMER, CALLAHAN, and IKUTA, Circuit Judges.
Roberto Rodriguez-Sanchez (“Rodriguez”) petitions for review of a decision
of the Board of Immigration Appeals (“BIA”), which denied his petition because
he failed to meet the April 26, 2005, filing deadline for a special motion to reopen
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
under 8 C.F.R. § 1003.44.1 Rodriguez raises two grounds for error: one explicitly,
the other implicitly. First, Rodriguez argues that the April 26, 2005, deadline set
by statute for special motions to reopen under the Supreme Court’s opinion in INS
v. St. Cyr, 533 U.S. 289 (2001), should not apply because the deadline violates “the
spirit of St. Cyr.” Second, Rodriguez implicitly argues that he is entitled to
equitable tolling of the deadline. For the reasons set forth here, as well as in our
opinion in Tapia-Luna v. Holder, 08-71086, which is filed simultaneously with this
memorandum disposition, we deny the petition.
There is no dispute that Rodriguez missed the April 26, 2005 filing deadline
for special motions to reopen by fifteen months. Instead, Rodriguez contends that,
while he was competently represented by counsel in his removal proceedings in
1996 and 1997, he had no reason to seek the advice of counsel subsequent to his
deportation. Because his deportation occurred before the Supreme Court decided
St. Cyr, Rodriguez asserts that he did not independently learn of the St. Cyr
decision and the subsequent regulation setting forth the procedures and deadlines
until after the April 26, 2005, deadline for filing motions to reopen had passed. He
contends that the April 26, 2005, deadline for filing special motions to reopen set
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The parties are familiar with the facts and we repeat them here only as
necessary to explain our decision.
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forth in § 1003.44(h) undermines the “spirit of St. Cyr” because the BIA failed to
consider the human implications of individuals subject to pre-St. Cyr rulings.
“This court reviews BIA denials of motions to reopen for abuse of
discretion.” Iturribarria v. INS, 321 F.3d 889, 894 (9th Cir. 2003). “The BIA
abuses its discretion when it acts arbitrarily, irrationally, or contrary to the law.”
Movsisian v. Ashcroft, 395 F.3d 1095, 1098 (9th Cir. 2005) (internal quotations
omitted).
As we set forth in our opinion in Tapia-Luna, we conclude that § 1003.44 is
a constitutionally and procedurally sound regulation and that the April 26, 2005,
deadline for filing special motions to reopen provides due process in the form of a
remedy to those aliens that were denied § 212(c) relief to which they were entitled
under St. Cyr. The deadline does not violate the “spirit of St. Cyr,” but rather is
part of the regulatory scheme that effectuates St. Cyr.
To the extent that Rodriguez is implicitly arguing that the April 26, 2005,
deadline for filing special motions to reopen should be equitably tolled, his
argument also fails. Equitable tolling may apply “when a petitioner is prevented
from filing because of deception, fraud, or error, as long as the petitioner acts with
due diligence in discovering the deception, fraud, or error.” Iturribarria, 321 F.3d
at 897; see also Singh v. Gonzales, 491 F.3d 1090 (9th Cir. 2007) (to warrant
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equitable tolling of a filing deadline, the petitioner must show that he has acted
with due diligence).
Rodriguez admits that he was competently represented by counsel
throughout his deportation hearings, and acknowledges that he did not contact his
attorney after his deportation. He makes no suggestion that there was fraud,
deception, or error that could justify the grant of equitable tolling.
Because we find that the April 26, 2005, deadline for filing special motions
to reopen does not violate the “spirit of St. Cyr,” and because we find that
Rodriguez has provided no basis for equitable tolling of that deadline, the petition
for review of the BIA’s denial of his motion to reopen is
DENIED.
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