Ignacio Sierra Carlos v. Merrick Garland ( 2023 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS FEB 22 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
IGNACIO SIERRA CARLOS, No. 19-71490
Petitioner, Agency No. A098-212-242
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted December 6, 2022
San Francisco, California
Before: NGUYEN and KOH, Circuit Judges, and BATAILLON,** District Judge.
Ignacio Sierra Carlos, a citizen of Mexico, challenges an agency decision
denying his motion to reopen his removal proceedings. We have jurisdiction under
8 U.S.C. § 1252. We grant the petition and remand.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Joseph F. Bataillon, United States District Judge for
the District of Nebraska, sitting by designation.
Sierra Carlos argues that the BIA erred in declining to equitably toll the filing
deadline for his motion to reopen. Sierra Carlos argues that the Supreme Court’s
issuance of Pereira v. Sessions, 138 S. Ct. 2105 (2018), constituted an extraordinary
circumstance warranting equitable tolling because it affected his statutory eligibility
for cancellation of removal. See Lona v. Barr, 958 F.3d 1225, 1230 (9th Cir. 2020)
(“The BIA may equitably toll th[e] statutory filing deadline . . . in cases where the
petitioner seeks excusal from untimeliness based on a change in the law that
invalidates the original basis for removal.”); see also Pereira, 138 S. Ct. at 2113–14
(holding that “[a] putative notice to appear [(“NTA”)] that fails to designate the
specific time or place of the noncitizen’s removal proceedings is not a ‘notice to
appear under [8 U.S.C. §] 1229(a),’ and so does not trigger the stop-time rule” for
the continuous presence requirement for cancellation of removal (quoting 8 U.S.C.
§ 1229b(d)(1))).
In finding the filing deadline should not be equitably tolled, the BIA declined
to determine whether Sierra Carlos had diligently pursued his rights. Instead, the
BIA relied solely on its determination that “the Supreme Court’s 2018 issuance of
Pereira does not constitute an extraordinary circumstance that stood in [Sierra
Carlos’s] way and prevented the timely filing of his motion to reopen.” However,
the BIA’s decision later makes clear that it understood Pereira to have no effect on
Sierra Carlos’s eligibility for cancellation of removal because the subsequent notice
2
of hearing perfected the deficient NTA and triggered the stop-time rule. The
Supreme Court rejected this interpretation of Pereira in Niz-Chavez v. Garland, 141
S. Ct. 1474 (2021). Thus, remand is in order.1
Although the BIA also determined that Sierra Carlos had not shown “that the
evidence sought to be offered (i.e., evidence that the respondent has at [sic] one
qualifying relative, his United States citizen wife, whom he married on June 13,
2014, . . .) was not available and could not have been discovered or presented at the
former hearing,” 2 that is not an independent basis to deny the petition. Sierra Carlos
was ordered removed on March 20, 2014, but did not marry his U.S. citizen wife
until June 13, 2014. Thus, the BIA’s conclusion that Sierra Carlos’s marriage did
not constitute new evidence that could not have been presented at the time of his
removal proceedings was in error. See Bhasin v. Gonzales, 423 F.3d 977, 987 (9th
Cir. 2005).
PETITION FOR REVIEW GRANTED; REMANDED.
1
Sierra Carlos argues that the BIA also erred in finding that the IJ had jurisdiction
over the removal proceedings notwithstanding the deficient NTA, but we rejected
that argument in Aguilar Fermin v. Barr, 958 F.3d 887, 895 (9th Cir. 2020).
2
A motion to reopen must “state the new facts that will be proven at a hearing to be
held if the motion is granted and shall be supported by affidavits or other evidentiary
material.” 8 U.S.C. § 1229a(c)(7)(B).
3