Ballardo Gomez-Gomez v. Jefferson Sessions ( 2017 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS NOV 6 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
BALLARDO GOMEZ-GOMEZ, No. 14-70535
Petitioner, Agency No. A075-103-309
v.
MEMORANDUM*
JEFFERSON B. SESSIONS III, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted September 1, 2017
Seattle, Washington
Before: HAWKINS and McKEOWN, Circuit Judges, and FOOTE,** District
Judge.
Ballardo Gomez-Gomez petitions for review of the Board of Immigration
Appeals’ (“BIA”) denial of his motion to reopen his 1998 deportation proceedings.
We review the denial of a motion to reopen for abuse of discretion and purely legal
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Elizabeth E. Foote, United States District Judge for the
Western District of Louisiana, sitting by designation.
questions de novo. Bonilla v. Lynch, 840 F.3d 575, 581 (9th Cir. 2016). Because
the BIA failed to “consider and address in its entirety the evidence submitted by
[the] petitioner” and “issue a decision that fully explains the reasons for denying
[the] motion to reopen,” we remand to the BIA. Franco-Rosendo v. Gonzales, 454
F.3d 965, 966 (9th Cir. 2006) (quoting Mohammed v. Gonzales, 400 F.3d 785,
792–93 (9th Cir. 2005)).
Gomez-Gomez became a lawful permanent resident in 1991. Following a
criminal conviction, he was deported to Nicaragua in 2002 pursuant to a 1998 BIA
decision denying his application for withholding of removal. Subsequently, he
illegally reentered the United States and again was deported to Nicaragua, where
he remains to this day. After his second deportation, Gomez-Gomez’s criminal
conviction was vacated due to ineffective assistance of counsel. Within ninety
days of that decision, Gomez-Gomez sought to reopen his deportation proceedings,
arguing that the sole basis for his deportation was a criminal conviction that had
since been vacated. Because the ninety day deadline for filing a motion to reopen
runs from the final administrative order of removal, Gomez-Gomez submitted that
equitable tolling of the deadline was warranted based on the prior ineffective
assistance of counsel and the recent disposition of his criminal case. In the
alternative, Gomez-Gomez urged the BIA to reopen the proceedings sua sponte
based upon exceptional circumstances.
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The BIA denied Gomez-Gomez’s motion to reopen, concluding that his
motion was untimely. In addition, it declined to exercise its sua sponte discretion
to reopen his case, stating that exceptional circumstances were not present. The
BIA further noted that “the respondent admits that after his deportation he
reentered the United States unlawfully, and that the deportation order was
reinstated in November 2012. Under . . . 8 U.S.C. § 1231(a)(5), proceedings are
not subject to being reopened if an alien reentered unlawfully after deportation.”
In issuing its decision, it is unclear if the BIA considered whether an alien
such as Gomez-Gomez—who is outside of the United States when he files a
motion to reopen, whose criminal conviction has been vacated on constitutional
grounds, and whose reinstatement procedure has been fully executed—may seek to
reopen his deportation proceedings, or instead, whether despite these unique
circumstances, a motion to reopen is barred by 8 U.S.C. § 1231(a)(5). It is further
unclear whether, in finding Gomez-Gomez’s motion to reopen untimely, the BIA
considered his equitable tolling arguments. The BIA’s discussion of the motion’s
untimeliness focused exclusively on its discretionary authority to reopen sua
sponte. Therefore, we remand to the BIA for clarification of these issues. See
Franco-Rosendo, 454 F.3d at 966.
Accordingly, the petition is GRANTED and REMANDED.
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