Dela Cruz v. Mukasey ( 2008 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DIEGO ANTIGUA DELA CRUZ, JR.;  Nos. 05-76564
NIEVA ESPIRITU DELA CRUZ,
06-75285
Petitioners,
v.  Agency Nos.
A77-835-221
MICHAEL B. MUKASEY,* Attorney A77-835-223
General,
OPINION
Respondent.

On Petitions for Review of Orders of the
Board of Immigration Appeals
Submitted June 11, 2008**
San Francisco, California
Filed July 9, 2008
Before: A. Wallace Tashima and Susan P. Graber,
Circuit Judges, and Robert J. Timlin,*** District Judge.
Per Curiam Opinion;
Concurrence by Judge Graber
*Michael B. Mukasey is substituted for his predecessor, Alberto R.
Gonzales, as Attorney General of the United States, pursuant to Fed. R.
App. P. 43(c)(2).
**The panel unanimously finds this case suitable for decision without
oral argument. Fed. R. App. P. 34(a)(2).
***The Honorable Robert J. Timlin, United States District Judge for the
Central District of California, sitting by designation.
8345
DELA CRUZ v. MUKASEY 8347
COUNSEL
Ted Laguatan, Law Offices of Ted Laguatan and Associates,
Daly City, California, for the petitioners.
Don G. Scroggin and Robert N. Markle, Office of Immigra-
tion Litigation, Civil Division, United States Department of
Justice, Washington, D.C., for the respondent.
OPINION
PER CURIAM:
In Stone v. INS, 514 U.S. 386 (1995), the Supreme Court
held that the filing of a motion to reopen or reconsider before
8348 DELA CRUZ v. MUKASEY
the Board of Immigration Appeals (“BIA”) does not toll the
statutory time limit for filing a petition for review in the
courts of appeals. Today, we hold that the reverse is also true:
The filing of a petition for review in this court does not toll
the statutory time limit for filing a motion to reopen before
the BIA.
Petitioners Diego Antigua Dela Cruz, Jr., and his wife,
Nieva Espiritu Dela Cruz, are citizens of the Philippines. In
1984, they legally entered the United States on the authority
of six-month travel visas. They never left. Petitioners’ youn-
gest child was born in the United States on December 17,
1984, and she therefore is a United States citizen.
In 2000, the government issued to Petitioners a notice to
appear. At a hearing before an immigration judge (“IJ”), Peti-
tioners admitted removability but sought relief in the form of
cancellation of removal and, alternatively, voluntary depar-
ture. The IJ denied cancellation of removal. The IJ held that
Petitioners met all the requirements for cancellation of
removal except a showing of hardship, because the aspects of
hardship asserted by Petitioners were common to almost
every cancellation of removal application. But the IJ granted
voluntary departure.
On October 27, 2005, the BIA affirmed the IJ’s decision in
a one-judge unpublished opinion. Petitioners filed a timely
petition for review in this court. Less than two months later,
Petitioners’ daughter turned 21 years old. She then filed a
petition for legal resident status for her parents under 8 U.S.C.
§ 1151(b). That petition was provisionally approved by Immi-
gration and Customs Enforcement.
Because of that changed circumstance, Petitioners filed a
motion to reopen with the BIA on June 5, 2006. The BIA
denied the motion to reopen on the ground that the motion
was untimely. Petitioners filed a timely motion to reconsider.
The BIA denied that motion because “the pending petition for
DELA CRUZ v. MUKASEY 8349
review with the Ninth Circuit did not toll the time limitation
for filing a motion to reopen. Consequently, there is no error
of fact or law in our [previous] decision, denying the motion
to reopen as untimely, and reconsideration is not warranted.”
Petitioners filed a timely petition for review from the BIA’s
order denying the motion to reconsider. We consolidated the
two petitions. 8 U.S.C. § 1252(b)(6).
[1] Petitioners’ petition for review of the order of removal
raises two issues that we have rejected previously. We lack
jurisdiction over the IJ’s “exceptional and extremely unusual
hardship” determination. Martinez-Rosas v. Gonzales, 424
F.3d 926, 930 (9th Cir. 2005); Romero-Torres v. Ashcroft,
327 F.3d 887, 888 (9th Cir. 2003). Further, a one-judge opin-
ion by the BIA does not violate Petitioners’ due process
rights. Falcon Carriche v. Ashcroft, 350 F.3d 845, 850-51
(9th Cir. 2003).
Petitioners’ petition for review of the BIA’s order denying
their motion to reconsider raises the purely legal question
addressed below. We review de novo the BIA’s determination
of purely legal questions. Cano-Merida v. INS, 311 F.3d 960,
964 (9th Cir. 2002).
[2] “Except as provided in [provisions unrelated to this
appeal], the motion to reopen shall be filed within 90 days of
the date of entry of a final administrative order of removal.”
8 U.S.C. § 1229a(c)(7)(C)(i). Petitioners filed their motion to
reopen more than 90 days after the BIA’s decision ordering
Petitioners removed. The motion was thus untimely.1
1
Petitioners filed a petition for review from the BIA’s denial of their
motion to reconsider, not the BIA’s denial of their motion to reopen. But
that fact does not change the analysis here. In its order denying the motion
to reconsider, the BIA held that it did not make an error of law in its order
denying the motion to reopen as untimely. If Petitioners are correct that,
as a matter of law, their motion to reopen was timely, then the BIA erred
in both of its orders: first, by holding that Petitioners’ motion to reopen
was untimely and, second, by holding that it did not make an error of law
in its previous order.
8350 DELA CRUZ v. MUKASEY
[3] If, however, the statutory time limit for filing a motion
to reopen is tolled while a petition for review is pending in
this court, then the motion was timely.2 Petitioners argue that
tolling applies because there was no “final administrative
order of removal,” id., after Petitioners filed a petition for
review with this court.
[4] In Stone, 514 U.S. at 405-06, the Supreme Court held
that the filing of a motion to reopen or to reconsider with the
BIA does not toll the statutory time limit for filing a petition
for review. The Court held that a removal order is “final when
issued,” and “[i]ts finality is not affected by the subsequent
filing of a motion to reconsider.” Id. at 405. That conclusion
stemmed from the Immigration and Nationality Act’s consoli-
dation provision: “When a petitioner seeks review of an order
[of removal] under this section, any review sought of a
motion to reopen or reconsider the order shall be consolidated
with the review of the order.” 8 U.S.C. § 1105a(a)(6) (1995),
recodified at 8 U.S.C. § 1252(b)(6). The consolidation provi-
sion contemplates two separate petitions for review: one from
the BIA’s decision ordering a petitioner removed and another
from the BIA’s decision denying a motion to reopen or recon-
sider. Stone, 514 U.S. at 394. The Court gave meaning to that
provision by holding that the BIA’s removal order remains
final, even if the petitioner files a motion to reopen or recon-
sider. Id. at 394-95. The Court concluded that Congress “envi-
sioned two separate petitions filed to review two separate
final orders.” Id. at 405 (emphasis added). Petitioners’
contention—that a removal order’s finality is affected by the
filing of a petition for review in the court of appeals—is irrec-
oncilable with that statutory scheme.3
2
The type of tolling asserted by Petitioners is statutory tolling, not equi-
table tolling. There is no basis for applying equitable tolling here. See
Socop-Gonzalez v. INS, 272 F.3d 1176, 1193 (9th Cir. 2001) (en banc)
(stating the standard for equitable tolling).
3
The Court’s recent opinion in Dada v. Mukasey, 128 S. Ct. 2307(2008), which interprets the statutory provisions concerning voluntary
departure, does not detract from the Stone analysis.
DELA CRUZ v. MUKASEY 8351
[5] We therefore join our sister circuits and hold that the
pendency of a petition for review of an order of removal does
not toll the statutory time limit for the filing of a motion to
reopen with the BIA. Zhao Quan Chen v. Gonzales, 492 F.3d
153, 155 (2d Cir. 2007) (per curiam); Randhawa v. Gonzales,
474 F.3d 918, 922 (6th Cir. 2007); accord In re Susma, 22 I.
& N. Dec. 947, 948 (B.I.A. 1999) (en banc) (per curiam).
In No. 05-76564, the petition for review is DISMISSED in
part and DENIED in part. In No. 06-75285, the petition for
review is DENIED.
GRABER, Circuit Judge, with whom TASHIMA, Circuit
Judge, and TIMLIN, District Judge, join,1 concurring:
I concur in our per curiam opinion. As a matter of law, the
filing of a petition for review in this court does not extend the
time period during which an alien may file a motion to reopen
with the BIA. I write separately to point out that the BIA may
reopen a proceeding, sua sponte, at any time. 8 C.F.R.
§ 1003.2(a). I encourage the BIA to consider whether this
case warrants a discretionary exercise of that authority.
Petitioners are in their 50s. All three of their children, and
their children’s families, legally reside in the United States.
For more than 20 years, Petitioners have been productive
members of society: They have never been arrested or
charged with a crime; they have never been on welfare; they
have successfully raised three children; and they have held
full-time jobs and paid taxes. In fact, the government agrees
with the immigration judge that Petitioners “are extremely
deserving people for a favorable exercise of discretion.”
1
Even though all members of the panel agree with the sentiments stated
here, we recognize that our views are dicta and, therefore, do not include
them in the precedential opinion.
8352 DELA CRUZ v. MUKASEY
The BIA issued its decision just six weeks before Petition-
ers’ daughter turned 21 years old and was able to petition for
adjustment of status for her parents. That petition was provi-
sionally granted. If the BIA had granted Petitioners’ motion
to reopen (or if it had issued its original decision later), Peti-
tioners likely would have been able to avoid removal. As it is,
upon our denial of the petitions for review, the stay of
removal will lift automatically, and the government will be
free to remove Petitioners, who then would be ineligible for
reentry for several years. In the circumstances, as the immi-
gration judge put it, Petitioners “are extremely deserving peo-
ple for a favorable exercise of discretion.”