Sun v. Holder ( 2009 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
WENQIN SUN, 
Petitioner,
No. 06-74450
v.
 Agency No.
MICHAEL B. MUKASEY, Attorney A079-592-229
General,
Respondent.

WENQIN SUN, 
Petitioner, No. 07-70691
v.
 Agency No.
A079-592-229
MICHAEL B. MUKASEY, Attorney
General, OPINION
Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
October 21, 2008—San Francisco, California
Filed February 9, 2009
Before: Mary M. Schroeder, Dorothy W. Nelson, and
Stephen Reinhardt, Circuit Judges.
Opinion by Judge Schroeder
1449
SUN v. MUKASEY 1451
COUNSEL
Drew Sieminski, Oakland, California, for the petitioner.
Jem C. Sponzo, Washington, D.C., for the respondent.
OPINION
SCHROEDER, Circuit Judge:
Petitioner Wenqin Sun is a native and citizen of China, and
she is also a battered spouse. The Board of Immigration
1452 SUN v. MUKASEY
Appeals (“BIA”) affirmed the Immigration Judge’s (“IJ’s”)
denial of asylum, withholding of removal, and relief under the
Convention Against Torture, and entered a final order of
removal in 2004. Sun did not seek review of that decision and
now seeks review of the BIA’s denial, on timeliness grounds,
of her motion to reopen removal proceedings on the basis of
her successful application to qualify for an adjustment of sta-
tus under the Violence Against Women Act (“VAWA”), 8
U.S.C. § 1154. Her motion to reopen was not filed within the
year provided for in 8 U.S.C. § 1229a(c)(7)(C)(iv)(III)
because of errors of counsel. She seeks review of the BIA’s
rulings that: (1) she did not adequately show her first lawyer
was ineffective; and (2) she did not act diligently to obtain
new counsel after becoming aware of the first lawyer’s omis-
sions. Sun also seeks review of the BIA’s denial of her motion
for reconsideration of its previous decision, which the BIA
also denied after finding that Sun failed to specify any errors
of fact or law that would justify reversing the earlier decision.
As a threshold matter, we must address the government’s
contention that we should not consider Sun’s petition for
review because she failed to appear on the date set for her
removal and is for that reason a “fugitive from justice” with-
out entitlement to review in this court. The fugitive disentitle-
ment doctrine developed to prevent appellate review for
escapees from the criminal justice system. Regardless of
Sun’s conduct at the time she was ordered to report for
removal, she is not now a fugitive from justice, and there is,
therefore, no reason for us to treat her as if she were by refus-
ing to consider her petition for review in this court.
We therefore examine the bases for the BIA’s rulings and
grant the petitions for review. Regardless of the Board’s hold-
ing that Sun fell short of the strict requirements for establish-
ing ineffective assistance of counsel under Matter of Lozada,
19 I. & N. Dec. 637 (B.I.A. 1988), Sun acted diligently in
retaining new counsel and is entitled to the benefit of the
equitable tolling doctrine. See Iturribarria v. INS, 321 F.3d
SUN v. MUKASEY 1453
889, 897-99 (9th Cir. 2003). We remand to the BIA for con-
sideration of the merits of Sun’s motion to reopen. We also
hold that the BIA should have granted Sun’s motion to recon-
sider, because Sun clearly pointed out the factual error under-
lying the BIA’s denial of her motion to reopen. See 8 C.F.R.
§ 1003.2(b)(1).
I. Fugitive disentitlement
[1] The government contends that Sun’s petition for review
should be dismissed on the basis of the fugitive disentitlement
doctrine, which was developed over a century ago to allow
appellate courts to dismiss the appeals of convicted criminals
who have fled. Smith v. United States, 94 U.S. 97 (1876).
Under the doctrine, a fugitive is precluded from appellate
review “as an appropriate sanction” when he remains at large
during “the ongoing appellate process.” Ortega-Rodriguez v.
United States, 507 U.S. 234, 242 (1993). The “paradigmatic
object of the doctrine is the convicted criminal who flees
while his appeal is pending.” Antonio-Martinez v. INS, 317
F.3d 1089, 1092 (9th Cir. 2003).
[2] In the immigration context, we have dismissed petitions
for review by aliens who have fled custody and cannot be
located when their appeals come before this court. See, e.g.,
id. at 1091-93 (petitioner had been missing and out of touch
with his attorney for two years); Hussein v. INS, 817 F.2d 63,
63 (9th Cir. 1987) (petitioner had escaped from federal immi-
gration detention facility and was at large). Other circuits that
have considered the issue have also applied the doctrine to
fugitive aliens under similar circumstances. See, e.g., Martin
v. Mukasey, 517 F.3d 1201, 1203-04 (10th Cir. 2008); Gao v.
Gonzales, 481 F.3d 173, 175-77 (2d Cir. 2007); Garcia-
Flores v. Gonzales, 477 F.3d 439, 441-42 (6th Cir. 2007);
Sapoundjiev v. Ashcroft, 376 F.3d 727, 728-30 (7th Cir.
2004); Arana v. INS, 673 F.2d 75, 76-77 (3d Cir. 1982) (per
curiam).
1454 SUN v. MUKASEY
No court has ever applied the doctrine to an alien whose
whereabouts are known and who has not fled from custody.
This is the first case in this circuit to consider the applicability
of the doctrine in such circumstances. We therefore look to
the justifications offered to support its application.
Where the doctrine may apply, the court has some discre-
tion to decide whether to apply it. United States v. Van Cau-
wenberghe, 934 F.2d 1048, 1054-55 (9th Cir. 1991). Two
justifications frequently advanced in support of dismissal on
a fugitive disentitlement theory are: (1) the pragmatic concern
with ensuring that the court’s judgment will be enforceable
against the appellant; and (2) the equitable notion that a per-
son who flouts the authority of the court waives his entitle-
ment to have his appeal considered. See Ortega-Rodriguez,
507 U.S. at 240; Antonio-Martinez, 317 F.3d at 1092.
[3] In light of these concerns, we must conclude that the
critical question the court must ask when deciding whether to
apply the fugitive disentitlement doctrine is whether the
appellant is a fugitive at the time the appeal is pending. The
Supreme Court has held that for disentitlement to be appropri-
ate, there must be “some connection between a defendant’s
fugitive status and the appellate process.” Ortega-Rodriguez,
507 U.S. at 244. Thus dismissal is not warranted even in the
case of a former fugitive, if his “fugitive status at no time
coincides with his appeal.” Id.[4] Although Sun did not report for removal from the
United States in August of 2004, as ordered by the BIA, that
failure does not make her a fugitive now, during the pendency
of her petition to review the BIA’s denial of reopening. Sun’s
whereabouts are known to her counsel, DHS, and this court.
Because Sun is not currently a fugitive, and has not been a
fugitive at least since the time she first filed a petition for
review with this court, we hold it would be inappropriate to
apply the fugitive disentitlement doctrine to dismiss Sun’s
SUN v. MUKASEY 1455
case. We will consider the merits of her appeal, which relate
to the timeliness of her motion to open removal proceedings.
II. Timeliness
We have jurisdiction under 8 U.S.C. § 1252(a) to review
the BIA’s denial of Sun’s motion to reopen, because the
Board’s determination that an alien has failed to provide a
sufficient justification for an untimely motion presents a
mixed question of fact and law, rather than a discretionary
determination, as urged by the government. See Ghahremani
v. Gonzales, 498 F.3d 993, 998-999 (9th Cir. 2007). We turn
to the merits of Sun’s arguments.
Sun’s problems all stem from the fact that she retained two
lawyers: one to handle her successful VAWA petition, and the
other to handle her unsuccessful efforts to seek relief from
removal through asylum. According to Sun, the lawyer han-
dling the VAWA adjustment in 2003 told her to forget about
applying to the courts for relief, even though the IJ already
ordered her removed and the removal order was pending on
appeal to the BIA. When the BIA denied the appeal in Janu-
ary 2004, Sun was required to move to reopen the proceeding
to seek adjustment of status under VAWA within one year of
that BIA ruling. 8 U.S.C. § 1229a(c)(7)(C)(iv)(III). Her
VAWA attorney did not do so, and neither did her asylum
attorney.
Sun’s VAWA attorney was apparently under the mistaken
impression that the VAWA petition had to have been granted
before Sun could seek to reopen removal proceedings. The
statute, however, requires only that the application be attached
to the motion. 8 U.S.C. § 1229a(c)(7)(C)(iv)(II). Sun’s lawyer
could, therefore, have moved to reopen as soon as the BIA
ruled in 2004, because the VAWA petition was then pending.
The VAWA petition was approved in July 2005, and on
January 26, 2006, Sun received an interview notice regarding
1456 SUN v. MUKASEY
her application for VAWA adjustment of status. She immedi-
ately obtained new counsel, who moved to reopen in February
2006, more than two years after the BIA’s decision denying
her appeal.
In the motion to reopen, Sun asked that the delay be
excused on the grounds of ineffective assistance of her origi-
nal VAWA counsel or, in the alternative, on the grounds of
equitable tolling, which applies when a petitioner acts
promptly after discovering counsel’s error. Iturribarria, 321
F.3d at 897.
The BIA denied the claim of ineffective assistance of coun-
sel because of Sun’s failure to comply with the strict require-
ments laid down by the Board in Matter of Lozada, 19 I. &
N. Dec. at 637, and generally upheld by this court, see, e.g.,
Castillo-Perez v. INS, 212 F.3d 518, 525-27 (9th Cir. 2000).
The BIA was troubled by Sun’s failure to delineate the precise
contours of her agreement with her original VAWA attorney,
although it appears from her unsworn letter to the California
State Bar, complaining about her attorney’s errors, that her
attorney was aware of the pending removal proceedings and
improperly ignored them.
[5] Whatever the failings of counsel, however, we need not
address ineffectiveness of counsel in this case. This is because
in denying relief on the alternative ground of equitable tolling,
the BIA, when it concluded that Sun had not acted diligently
in retaining new counsel to file a motion to reopen, made an
erroneous factual assumption. The BIA assumed that Sun
must have received the interview notice before her VAWA
petition was approved in 2005, so the BIA believed she had
waited more than six months to obtain new counsel and seek
reopening. In fact, however, the interview notice did not relate
to the grant of the VAWA petition. It pertained to her applica-
tion for adjustment of status, for which the grant of the
VAWA petition was a prerequisite. 8 U.S.C. § 1255(a). The
interview notice is clearly dated January 26, 2006, and sets an
SUN v. MUKASEY 1457
interview date of February 14, 2006. In responding to the
notice, Sun stated that her attorney needed time to prepare,
and her new attorney filed the motion to reopen within two
weeks of Sun’s response.
[6] Accordingly, Sun acted with admirable diligence after
retaining new counsel, who immediately recognized the errors
of his predecessors. She is entitled to equitable tolling under
the principle we laid down in Iturribarria, in which we held
that equitable tolling applies “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.” 321 F.3d at 897.
[7] Thus, in this case, Sun is entitled to a tolling of the one-
year limitation period until she met with present counsel in
connection with the January 26, 2006 interview notice and
became aware of her prior counsel’s legal errors. See id. The
record plainly demonstrates that Sun retained present counsel
after receiving the interview notice in late January 2006, and
filed her motion to reopen less than one month later. There
was no meaningful delay or lack of due diligence. Sun quali-
fies for equitable tolling, and the BIA must act upon her appli-
cation for adjustment of status.
Petition GRANTED.