MacArio Bonilla v. Loretta E. Lynch , 840 F.3d 575 ( 2016 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MACARIO JESUS BONILLA, No. 12-73853
Petitioner,
Agency No.
v. A090-170-253
LORETTA E. LYNCH, Attorney
General, OPINION
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted February 12, 2016
Pasadena, California
Filed July 12, 2016
Before: Marsha S. Berzon and John B. Owens, Circuit
Judges and Algenon L. Marbley,* District Judge.
Opinion by Judge Berzon
*
The Honorable Algenon L. Marbley, District Judge for the U.S.
District Court for the Southern District of Ohio, sitting by designation.
2 BONILLA V. LYNCH
SUMMARY**
Immigration
The panel granted in part and denied in part Macario
Jesus Bonilla’s petition for review of the Board of
Immigration Appeals’ decision denying his motion to reopen
deportation proceedings.
The panel held that Bonilla’s ineffective assistance of
counsel claim did not warrant equitable tolling of the
limitations period for his untimely-filed motion to reopen for
adjustment of status, and denied the petition for review on the
adjustment issue.
The panel held, however, that the BIA based its decision
declining to exercise its sua sponte authority to reopen on an
erroneous understanding of the legal principles concerning
the relationship between prior deportation, reopening of
deportation proceedings, and eligibility for INA § 212(c)
relief. The panel held that this court has jurisdiction to review
the BIA’s decision denying sua sponte reopening for the
limited purpose of reviewing the reasoning behind the
decision for legal or constitutional error. Holding that the
BIA’s decision was based on a legally erroneous premise, the
panel granted the petition, vacated, and remanded for the BIA
to exercise its broad discretionary authority as to sua sponte
reopening against the correct legal backdrop.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
BONILLA V. LYNCH 3
COUNSEL
Stacy Tolchin (argued), Law Offices of Stacy Tolchin, Los
Angeles, California, for Petitioner.
Aric A. Anderson (argued), Trial Attorney; Emily Ann
Radford, Assistant Director; Stuart F. Delery, Assistant
Attorney General; United States Department of Justice, Civil
Division, Office of Immigration Litigation, Washington,
D.C.; for Respondent.
OPINION
BERZON, Circuit Judge:
Immigration law changes over time. New statutes are
enacted; agency interpretations change; new appellate and
Supreme Court decisions issue. Our questions concern how
those legal changes affect an individual ordered deported
from the United States when, as it turns out, the law
concerning the grounds for deportation, or for denial of relief
from deportation, changes after the individual is ordered
deported.
Here, Macario Jesus Bonilla, formerly a lawful permanent
resident of the United States, was deported to El Salvador in
1996 following a misdemeanor firearms conviction. He later
reentered the United States without inspection and, much
later, filed a motion to reopen, his second, on the ground that
his original lawyer did not properly advise him how to adjust
his status after he married a United States citizen. The motion
was untimely, but Bonilla argued he was entitled to equitable
tolling of the limitations period.
4 BONILLA V. LYNCH
After the Supreme Court announced a change in law that
placed in question the legality of the original deportation,
Bonilla supplemented his motion to reopen. The supplement
asked the Board of Immigration Appeals (“BIA” or “Board”)
to exercise its sua sponte authority to reopen his deportation
order to permit him to file for relief from deportation. The
Board denied both Bonilla’s motion and his request for sua
sponte reopening. Bonilla now petitions for review.
We conclude that Bonilla was not entitled to equitable
tolling and so deny review as to the adjustment of status
issue. But, in agreement with every circuit that has squarely
addressed the issue, we hold that we have authority to review
refusals to reopen sua sponte to the limited degree that the
refusal was based on legal error. Because we conclude the
Board’s decision in this case was based on a legally erroneous
premise, we grant the petition for review, vacate the Board’s
denial, and remand to the Board to exercise its broad
discretionary authority as to sua sponte reopening against the
correct legal backdrop.
I. BACKGROUND
Macario Jesus Bonilla is a native and citizen of El
Salvador. He entered the United States in 1981 and became
a lawful permanent resident in 1989.
In 1994, Bonilla was convicted of misdemeanor
possession of a concealed firearm in a motor vehicle and
placed in deportation proceedings. An Immigration Judge
(“IJ”) concluded that because Bonilla had been a lawful
permanent resident for fewer than seven years and had been
convicted of a firearms offense, he was ineligible for any
form of relief under the Immigration and Nationality Act of
BONILLA V. LYNCH 5
1950 (“INA”), including a waiver of inadmissibility under
former § 212(c).1 The IJ therefore ordered him deported.
Bonilla appealed the decision to the BIA, pro se. In
October 1995, the Board affirmed, on the ground that the
reason for Bonilla’s deportation—his firearms conviction—
precluded his eligibility for § 212(c) relief.
Bonilla married Ana Lilian Bonilla, a United States
citizen, in February 1996. At the time of the marriage, the
couple had an infant son, Jessie, also a United States citizen.
After the marriage, a notario advised Bonilla to surrender
himself and present his marriage certificate to immigration
officials. Bonilla did so, and was taken to the San Pedro
Detention Center.
While Bonilla was detained, his father and Ana met with
and retained Manuel Rivera, an immigration attorney, who
assured them he could get Bonilla out of detention and stop
his deportation. Ana asked Rivera if there were any forms she
or Bonilla should file; Rivera said no. On March 12, 1996,
Rivera filed with the Board a motion to reopen for adjustment
of status and a request for stay of deportation. He also filed an
application for a stay of deportation with the Immigration and
Naturalization Service (“INS”).
The Board and INS denied the stay requests, and Bonilla
was deported to El Salvador. Rivera then told Ana there was
1
Section 212(c), as interpreted by the BIA, “authorize[d] any permanent
resident alien with ‘a lawful unrelinquished domicile of seven consecutive
years’ to apply for a discretionary waiver from deportation.” INS v. St.
Cyr, 533 U.S. 289, 295 (2001) (citing Matter of Silva, 16 I. & N. Dec. 26,
30 (BIA 1976)).
6 BONILLA V. LYNCH
nothing more he could do. He never sent Bonilla or Ana any
copies of the documents he filed or received on Bonilla’s
behalf.
Shortly thereafter, the Board denied Bonilla’s motion to
reopen for adjustment of status. To have his status adjusted,
the Board explained, Bonilla had to (1) make an application
for adjustment of status; (2) have an immigrant visa
immediately available to him at the time of filing his
application; and (3) be eligible to receive a visa and be
admissible for permanent residence. Bonilla never filed an
application for adjustment of status (Form I-485), and an
immigrant visa petition (Form I-130) was never filed on his
behalf. As there was no indication in the record that Bonilla
could have had an immigrant visa immediately available to
him, the Board denied the motion to reopen.
Bonilla and Ana then retained another immigration
attorney, Philip Abramowitz. Abramowitz advised Ana to file
an immigrant visa petition on Bonilla’s behalf. She did so on
October 30, 1996; the petition was approved on June 2, 1997.
During the course of his representation, Abramowitz never
told Bonilla that the Board had denied his motion to reopen
in May 1996, nor that Rivera should have filed an immigrant
visa petition and an application for adjustment of status.
In May 1999, while in El Salvador, Bonilla was shot by
gang members. Soon after, he fled the country and reentered
the United States without inspection.
In 2002, Bonilla consulted a pro bono attorney at an
immigration workshop. He explained his case and showed her
all of the case-related documents he had. The attorney told
Bonilla there was nothing she could do to help him. He “had[]
BONILLA V. LYNCH 7
to wait a few years before [he] could seek legal assistance to
fix [his] immigration case,” she said.
Bonilla then waited six years to seek further legal
assistance. In 2008, Bonilla and Ana met with Eddie Bonilla
(no relation) at Servicio Latino Legal Offices. Eddie Bonilla
claimed to be a licensed immigration attorney but, it turned
out, was not—he was a notary unlawfully practicing law.
Eddie Bonilla reviewed Bonilla’s documents and told Bonilla
he had to wait another year before taking any action. In 2009,
Bonilla returned and retained Eddie Bonilla to represent him.
Eddie Bonilla filed with the Board a pro se motion to reopen
or reconsider the denial of appeal. The motion was denied.
Still pursuing her husband’s case, Ana consulted with
Stacy Tolchin, Bonilla’s current attorney, in the fall of 2011.
Unlike the lawyers and faux lawyer consulted earlier, Tolchin
obtained Bonilla’s immigration files from this court, and
informed Bonilla and Ana that the Board had denied
Bonilla’s first motion to reopen back in May 1996. She also
advised them that an immigrant visa petition should have
been filed before filing the motion to reopen, which Rivera
had not told them.
On December 1, 2011, Tolchin filed a motion to reopen
Bonilla’s 1995 deportation order based on ineffective
assistance of counsel. Shortly thereafter, the Supreme Court
decided Judulang v. Holder, 565 U.S. __, 132 S. Ct. 476
(2011). Judulang disapproved a BIA practice concerning the
granting of § 212(c) relief.2 Invoking the change of law
2
Before it was repealed in 1996, INA § 212(c) authorized the Attorney
General to grant relief to certain excludable aliens. By its terms, § 212(c)
did not apply to deportation proceedings. The Board nonetheless adopted
8 BONILLA V. LYNCH
announced in Judulang, Tolchin filed on Bonilla’s behalf a
supplement to his motion to reopen, asking the Board to
exercise its sua sponte jurisdiction and reopen his deportation
order so that he could apply for § 212(c) relief under
Judulang.
The Board denied Bonilla’s motion to reopen for
adjustment of status. It held that equitable tolling of the filing
period was not merited, as Bonilla did not demonstrate either
due diligence or prejudice. In addition, the Board declined to
exercise its sua sponte authority to reopen the deportation
proceedings. Bonilla timely filed a petition for review.
II. JURISDICTION AND STANDARD OF REVIEW
We have jurisdiction under 8 U.S.C. § 1252 to review the
Board’s denial of Bonilla’s motion to reopen for adjustment
of status. See Avagyan v. Holder, 646 F.3d 672, 674 (9th Cir.
2011). We review the Board’s denial of a motion to reopen
for abuse of discretion, but review purely legal questions de
a policy permitting aliens in deportation proceedings to apply for § 212(c)
relief. See St. Cyr, 533 U.S. at 295-96. To determine when an alien should
receive § 212(c) relief in the deportation context, the Board adopted a
comparable-grounds approach—that is, it considered “whether the ground
for deportation charged in a case has a close analogue in the statute’s list
of exclusion grounds.” Judulang, 132 S. Ct. at 481. If so, the alien could
seek § 212(c) relief. Using the comparable-grounds approach, the BIA
held that § 212(c) relief was unavailable in deportation proceedings based
on firearm convictions, because there was no comparable ground of
excludability. See, e.g., Matter of Gabryelsky, 20 I. & N. Dec. 750 (BIA
1993); Matter of Montenegro, 20 I. & N. Dec. 603 (BIA 1992). Holding
that the comparable-grounds approach was arbitrary and capricious,
Judulang overruled the BIA’s previous decisions barring § 212(c) relief
in deportation proceedings based on firearms convictions. 132 S. Ct. at
483.
BONILLA V. LYNCH 9
novo. See Iturribarria v. INS, 321 F.3d 889, 894 (9th Cir.
2003). “The BIA abuses its discretion when its decision is
arbitrary, irrational, or contrary to law.” Avagyan, 646 F.3d
at 678 (citation and internal quotation marks omitted).
The Supreme Court recently left open the question
“whether federal courts may review the Board’s decision not
to reopen removal proceedings sua sponte.” Kucana v.
Holder, 558 U.S. 233, 251 n.18 (2010). Before Kucana, we
had held that, generally, we lack jurisdiction to review denials
of sua sponte reopening. See Ekimian v. INS, 303 F.3d 1153,
1159 (9th Cir. 2002). But we have not specifically addressed
whether we have jurisdiction to review the Board’s denial of
a motion to reopen sua sponte for the limited purpose of
determining whether the Board based its decision on legal or
constitutional error. Several circuits have held that courts of
appeal do have such limited jurisdiction. See, e.g., Salgado-
Toribio v. Holder, 713 F.3d 1267, 1271 (10th Cir. 2013);
Pllumi v. Attorney General, 642 F.3d 155, 160 (3d Cir. 2011);
Mahmood v. Holder, 570 F.3d 466, 469 (2d Cir. 2009). For
reasons explained in Part III.B, infra, we agree with those
decisions.
III. DISCUSSION
A. Motion to Reopen for Adjustment of Status Based on
Ineffective Assistance of Counsel
1. Ineffective Assistance of Counsel as a Basis for
Equitable Tolling
Generally, a motion to reopen must 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), and an alien is
10 BONILLA V. LYNCH
limited to one such motion. Id. § 1229a(c)(7)(A). But,
because Bonilla’s final deportation order preceded the
imposition of the current time and number limitations on
motions to reopen, his motion to reopen was due by
September 30, 1996. See Executive Office for Immigration
Review; Motions and Appeals in Immigration Proceedings,
61 Fed. Reg. 18900-01 (Apr. 29, 1996). Bonilla did not file
the motion to reopen at issue in this case until December 1,
2011, more than fifteen years late.
Failure to meet the filing deadline is not fatal where
equitable tolling is available.3 “Ineffective assistance of
counsel is one basis for equitable tolling.” Singh v. Holder,
658 F.3d 879, 884 (9th Cir. 2011). Equitable tolling applies
in ineffective assistance of counsel cases because, “[a]lthough
there is no Sixth Amendment right to counsel in a deportation
proceeding, the due process guarantees of the Fifth
Amendment still must be afforded to an alien petitioner.”
Avagyan, 646 F.3d at 676–77 (citation omitted). Ineffective
assistance of counsel in a deportation proceeding denies an
alien petitioner his due process rights “if the proceeding was
so fundamentally unfair that the alien was prevented from
reasonably presenting his case.” Id. at 677 (citation omitted).
Erroneous legal advice that results in the petitioner failing to
file a timely motion to reopen is such a denial of due process.
Id. “Consequently, we ‘recognize[] equitable tolling of
deadlines and numerical limits on motions to reopen . . .
during periods when a petitioner is prevented from filing
because of [his attorney’s] deception, fraud, or error, as long
as the petitioner acts with due diligence in discovering the
3
It also is not fatal where the BIA decides to reopen proceedings on its
own authority, which it may do at any time. See 8 C.F.R. § 1003.2(a). We
address Bonilla’s motion to reopen sua sponte in Part III.B, infra.
BONILLA V. LYNCH 11
deception, fraud, or error.” Id. (quoting Iturribarria, 321 F.3d
at 897).
To determine whether a petitioner exercised due
diligence, we consider three factors: (1) “if (and when) a
reasonable person in petitioner’s position would suspect the
specific fraud or error underlying her motion to reopen”;
(2) “whether petitioner took reasonable steps to investigate
the [attorney’s] suspected fraud or error, or, if petitioner is
ignorant of counsel’s shortcomings, whether petitioner made
reasonable efforts to pursue relief”; and (3) “when the tolling
period should end; that is, when petitioner definitively learns
of the harm resulting from counsel’s deficiency.” Avagyan,
646 F.3d at 679 (citations omitted). The petitioner need not
“act with the maximum diligence possible—only due or
reasonable diligence.” Id. (internal quotation marks omitted).
Our review of the petitioner’s diligence is “fact-intensive and
case-specific, assessing the reasonableness of petitioner’s
actions in the context of his or her particular circumstances.”
Id.
2. Review of Bonilla’s Asserted Diligence
Bonilla argued in his motion to reopen for adjustment of
status that the Board should reopen its 1995 decision
affirming his order of deportation because his first attorney,
Manuel Rivera, and the notary posing as an attorney, Eddie
Bonilla, both provided ineffective assistance. Bonilla
acknowledged that the motion was filed many years past the
deadline for filing such motions, but contended that he had
demonstrated due diligence during, and therefore was entitled
to equitable tolling for, the years between 1996 and 2011.
12 BONILLA V. LYNCH
The Board disagreed, holding, inter alia, that Bonilla did
not act with due diligence, as there was a six year gap—
between 2002 and 2008—in his pursuit of legal advice. We
enforce the denial of the motion to reopen on this ground, and
so do not reach the Board’s other bases for denying the
motion to reopen. Assuming, therefore, that Bonilla was
indeed “ignorant of [his prior] counsel’s shortcomings” when
he consulted his present attorney in 2011, Avagyan, 646 F.3d
at 679, the question is whether Bonilla “made reasonable
efforts to pursue relief,” despite that six-year lapse. Id.
Bonilla explained that he did not seek any legal assistance
from 2002 to 2008 because he was following the 2002 advice
of the pro bono attorney he consulted at an immigration
workshop.4 That attorney told him to “wait a few years.”
Bonilla contends that it was reasonable for him to rely on the
immigration workshop attorney’s advice.
Taking into account the “particular circumstances,”
Avagyan, 646 F.3d at 679, we note, first, that Bonilla did give
the attorney what he thought to be the necessary information
about his case and had no reason to believe her advice
incorrect. But Bonilla appears to have had no meaningful or
sustained relationship with that attorney; he did not provide
her name, for example, nor any details about the immigration
workshop, such as its sponsoring organization or location.
Lacking any continuing connection to the lawyer or the
sponsoring organization, he could not, and did not, follow up
with her, nor she with him. Nor did Bonilla explain the basis
4
The Board did not find that the facts alleged in Bonilla’s declaration
are “inherently unbelievable,” so we accept them as true. Avagyan,
646 F.3d at 679 (quoting Ghahremani v. Gonzales, 498 F.3d 993, 999 (9th
Cir. 2007)).
BONILLA V. LYNCH 13
for the attorney’s recommendation to wait, perhaps because
she did not offer one, or because he did not understand or
remember what she said.
Most importantly, although the attorney advised Bonilla
to wait “a few years” to seek further legal help, she did not
advise him how long to wait. Because of the lack of any
ongoing relationship, she was in no position to contact him
when the appropriate time to seek relief had arrived and did
not do so.
In the end, Bonilla waited six years to take any further
action to negate the 1995 deportation order. He provides no
explanation for waiting that long.
Given the exceedingly long lapse of time before seeking
further legal advice, the lack of any continuing relationship or
follow up with the lawyer relied upon, and the general nature
of the advice offered, the BIA appropriately concluded that
Bonilla did not make “reasonable efforts to pursue relief,”
Avagyan, 646 F.3d at 679, and so did not demonstrate the
diligence necessary for equitable tolling.5
5
In his opening brief, Bonilla also maintained that it was futile to file a
motion to reopen until 2010, when this court ruled unlawful a “departure
bar” regulation providing that departure from the United States constituted
a withdrawal of a motion to reopen made previously. See Reyes-Torres v.
Holder, 645 F.3d 1073, 1075–76 (9th Cir. 2011); Coyt v. Holder, 593 F.3d
902, 906 (9th Cir. 2010). At oral argument on this appeal, Bonilla’s
attorney changed positions somewhat, arguing that filing would have been
futile only until 2007, citing Lin v. Gonzales, 473 F.3d 979 (9th Cir.
2007). Or. Arg. Tr. 21:10-21:30. Leaving aside which date is correct,
Bonilla did not raise this departure bar argument in any form to the BIA
as a ground for granting equitable tolling. As the issue was not exhausted,
we lack jurisdiction to consider it. See Alvarado v. Holder, 759 F.3d 1121,
1127 n.5 (9th Cir. 2014) (explaining that our court’s precedent “has
14 BONILLA V. LYNCH
We deny Bonilla’s petition for review as to the motion to
reopen for adjustment of status.
B. Motion to Reopen Sua Sponte
After the Supreme Court rejected the comparable-grounds
approach in Judulang, see note 2, supra, Bonilla asked the
Board to exercise its sua sponte authority to reopen his 1995
deportation order so that he could now apply for § 212(c)
relief, as Judulang would allow. The Board denied the
request. Maintaining that the Board’s denial of sua sponte
reopening rested on an erroneous legal premise, Bonilla asks
that we correct the error and vacate the Board’s denial of sua
sponte relief.
We conclude that we do have jurisdiction to review the
Board’s decision so as to assure that the Board made its
discretionary decision on the correct understanding of the
applicable legal principles. As the Board premised its
decision on an erroneous understanding of the legal principles
concerning the relationship between prior deportation,
reopening of deportation proceedings, and eligibility for
§ 212(c) relief, we will grant the petition and return the case
to the Board for further consideration.
1. Origins of the Board’s Sua Sponte Reopening
Authority
We begin our consideration of the jurisdictional question
before us by revisiting some history of the concept of
reopening.
squarely held that issue exhaustion is a jurisdictional requirement”).
BONILLA V. LYNCH 15
Originally, in the immigration context, “reopening [was]
a judicial creation . . . .” Dada v. Mukasey, 554 U.S. 1, 12
(2008) (citing federal court cases reviewing administrative
decisions denying motions to reopen removal proceedings
from the early 1900s). In 1958, the year the BIA was
established, “the Attorney General promulgated a rule for the
reopening and reconsideration of removal proceedings . . . .”
Id. at 13 (citing 23 Fed. Reg. 9115, 9118–9119 (1958), final
rule codified at 8 C.F.R. § 3.2 (1959)).
Today, the Board’s authority to grant or deny a motion to
reopen is still found in a regulation, 8 C.F.R. § 1003.2(a),
which closely follows the 1958 version. Dada, 554 U.S. at 13.
The current regulation provides:
The Board may at any time reopen or
reconsider on its own motion any case in
which it has rendered a decision. . . . The
decision to grant or deny a motion to reopen
or reconsider is within the discretion of the
Board, subject to the restrictions of this
section. The Board has discretion to deny a
motion to reopen even if the party moving has
made out a prima facie case for relief.
8 C.F.R. § 1003.2(a).
Until 1996, there was no time limit for requesting
reopening. Dada, 554 U.S. at 13. In 1990, Congress, “fearful
that deportable or excludable aliens were trying to prolong
their stays in the U.S. by filing one type of discretionary relief
. . . after another in immigration proceedings,” ordered the
Attorney General to issue regulations limiting the number of
motions and setting a maximum time period within which to
16 BONILLA V. LYNCH
file them. Id. (citation and internal alterations omitted).
Although “[t]he Attorney General found little evidence of
abuse,” Congress did not rescind or adjust its request. Id. So,
in 1996, the Department of Justice issued a regulation
imposing time limits and filing restrictions. Id. (citing
Executive Office for Immigration Review; Motions and
Appeals in Immigration Proceedings, 61 Fed. Reg. 18900,
18901, 18905 (1996)). Congress then codified those rules in
the Illegal Immigration Reform and Responsibility Act of
1996 (“IIRIRA”). Id. at 14.
“IIRIRA provided the first statutory right to a motion to
reopen . . . .” Meza-Vallejos v. Holder, 669 F.3d 920, 924 (9th
Cir. 2012) (citing 8 U.S.C. § 1229a(c)(7)). With certain
narrow exceptions, IIRIRA limited an alien to one motion to
reopen, to be filed within 90 days of the date of entry of a
final administrative order of removal. 8 U.S.C.
§§ 1229a(c)(7)(A), (c)(7)(C)(i). IIRIRA thus “transform[ed]
the motion to reopen from a regulatory procedure to a
statutory form of relief available to the alien.” Kucana,
558 U.S. at 249 (alteration in original) (quoting Dada,
554 U.S. at 14).
Notwithstanding the statutory provisions that now provide
the contours of the reopening process, Congress never
codified the regulation specifically authorizing the Board to
grant or deny a motion to reopen or reconsider. Kucana,
558 U.S. at 249. The regulation codified at 8 C.F.R.
§ 1003.2(a) thus remains the sole enunciation of the reach of
that power. Id. at 249–50.
Since the enactment of IIRIRA, where the timing and
numerosity statutory requirements are not met and equitable
tolling is unavailable, the only way an alien can reopen an
BONILLA V. LYNCH 17
adverse final order of removal is to ask the Board to exercise
its sua sponte authority—that is, to reopen the case “on its
own motion.” 8 C.F.R. § 1003.2(a); see also In re J-J-, 21 I.
& N. Dec. 976, 984, Interim Decision 3323 (BIA 1997)
(discussing the Board’s “limited discretionary powers under
the regulations to reopen or reconsider cases on [its] own
motion”). Neither the authorizing regulation, 8 C.F.R.
§ 1003.2(a), nor IIRIRA’s statutory provisions supply a
standard for the Board to apply when deciding whether to
grant or deny a motion to reopen sua sponte.
The Board has, however, articulated some general
parameters for the exercise of its sua sponte powers. It has
cautioned that its sua sponte power to reopen “is not meant to
be used as a general cure for filing defects or to otherwise
circumvent the regulations, where enforcing them might
result in hardship.” In re J-J-, 21 I. & N. Dec. at 984. Rather,
the Board “must be persuaded that the respondent’s situation
is truly exceptional before [it] will intervene.” In re G-D-,
22 I. & N. Dec. 1132, 1134 (BIA 1999). For example, “sua
sponte action by the Board is appropriate” where there has
been “a fundamental change in the law” that represents “a
departure from established principles.” Id. at 1135.
Importantly, however, the Board is not required—by
regulation or its own decisions—to reopen proceedings sua
sponte in exceptional situations. Ekimian, 303 F.3d at 1158.
2. Jurisdiction to Review the Board’s Decision to Deny
a Motion to Reopen Sua Sponte
Ekimian held that we ordinarily lack jurisdiction to review
a Board decision denying sua sponte reopening, as the
breadth and generality of the “truly exceptional situations”
locution, In re G-D-, 22 I. & N. Dec. at 1134, provides no
18 BONILLA V. LYNCH
judicially manageable standard with which to do so. Ekimian,
303 F.3d at 1159.
The Board had denied the Ekimians’ motion to reopen
sua sponte because it did “not find sufficient grounds . . . to
warrant” doing so. Id. at 1157. The Ekimians then petitioned
for review, arguing that because the Board had stated that it
could reopen proceedings sua sponte “in exceptional
situations,” id. (quoting In re J-J-, 21 I. & N. Dec. at 984),
this court had “jurisdiction to review the BIA’s determination
that ‘exceptional situations’ do not exist” for abuse of
discretion. Id. We rejected that argument. Id. at 1159.
In doing so, we “[took] some guidance from” Heckler v.
Chaney, 470 U.S. 821 (1985), which considered the
provisions for judicial review of agency actions set out in the
Administrative Procedure Act. Ekimian, 303 F.3d at 1158. In
particular, 5 U.S.C. § 701(a)(2) provides that the chapter on
judicial review does not apply when an “agency action is
committed to agency discretion by law.” Heckler explained
that, under § 701(a)(2), “even where Congress has not
affirmatively precluded review, review is not to be had if the
statute is drawn so that a court would have no meaningful
standard against which to judge the agency’s exercise of
discretion.” Heckler, 470 U.S. at 830. This exception to
judicial review is “very narrow,” and applies “in those rare
instances where statutes are drawn in such broad terms that in
a given case there is no law to apply.” Id. (quoting Citizens to
Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 410
(1971)) (internal quotation marks omitted). Drawing on
Heckler, Ekimian explained that the Ekimians “[could not]
point to any statutory, regulatory, or case law definition of
‘exceptional circumstances’ applicable to the BIA’s sua
sponte power under § 3.2(a),” and so rejected the argument
BONILLA V. LYNCH 19
that “exceptional situations” was a meaningful judicial
standard for reviewing the Board’s discretion. 303 F.3d at
1159. “Because we [could not] discover a sufficiently
meaningful standard against which to judge the BIA’s
decision not to reopen” sua sponte, Ekimian held, “we do not
have jurisdiction to review the BIA’s refusal to reopen
deportation proceedings sua sponte.” Id. at 1159–60.
Ekimian’s holding that the “exceptional situation”
benchmark does not provide a sufficiently meaningful
standard to permit judicial review remains good law. This
court has relied on or approvingly cited Ekimian in fifteen
published opinions.6 But neither Ekimian nor any of the later
cases considered the question presented here: whether
appellate courts have jurisdiction to review the Board’s denial
of a motion to reopen sua sponte for the limited purpose of
identifying legal or constitutional error.
Neither the immigration statute nor any regulation
expressly precludes judicial review of motions to reopen,
whether sua sponte or otherwise. Absent any such
proscription, there is a “presumption favoring interpretations
6
See Bear Valley Mut. Water Co. v. Jewell, 790 F.3d 977, 990 (9th Cir.
2015); Carrillo v. Holder, 781 F.3d 1155, 1160 n.11 (9th Cir. 2015);
Singh v. Holder, 771 F.3d 647, 650 (9th Cir. 2014); Mejia-Hernandez v.
Holder, 633 F.3d 818, 824 (9th Cir. 2011); Pinnacle Armor, Inc. v. United
States, 648 F.3d 708, 720 (9th Cir. 2011); Sharma v. Holder, 633 F.3d
865, 874 (9th Cir. 2011); Singh v. Holder, 658 F.3d at 884 n.6; Diaz-
Covarrubias v. Mukasey, 551 F.3d 1114, 1117-18 (9th Cir. 2009);
Minasyan v. Mukasey, 553 F.3d 1224, 1229 (9th Cir. 2009); Toufighi v.
Mukasey, 538 F.3d 988, 993 n.8 (9th Cir. 2007); Malty v. Ashcroft,
381 F.3d 943, 945 n.1 (9th Cir. 2004); Guzman v. INS, 318 F.3d 911, 914
n.4 (9th Cir. 2003); Mendez-Gutierrez v. Ashcroft, 340 F.3d 865, 868 (9th
Cir. 2003); Ramirez-Perez v. Ashcroft, 336 F.3d 1001, 1005 n.15 (9th Cir.
2003); Abassi v. INS, 305 F.3d 1028, 1032 (9th Cir. 2002).
20 BONILLA V. LYNCH
of statutes [to] allow judicial review of administrative
action.” Kucana, 558 U.S. at 237 (alterations in original)
(quoting Reno v. Catholic Soc. Servs., Inc., 509 U.S. 43, 64
(1993)); see also Gutierrez de Martinez v. Lamagno, 515 U.S.
417, 434 (1995) (“executive determinations generally are
subject to judicial review”). That presumption is “well-
settled,” Kucana, 558 U.S. at 252 (quoting Catholic Soc.
Servs., 509 U.S. at 63), and particularly important where legal
and constitutional questions are at issue.
For example, IIRIRA stripped courts of jurisdiction to
review most discretionary decisions or actions of the Attorney
General and Secretary of Homeland Security, the authority
for which was specified under a particular statutory
subchapter. See 8 U.S.C. § 1252(a)(2)(B)(ii). The REAL ID
Act of 2005 clarified, however, that courts were not
precluded from reviewing “constitutional claims or questions
of law raised upon a petition for review.” Id. § 1252(a)(2)(D).
The recognition in § 1252(a)(2)(D) that legal or constitutional
issues are reviewable even when the statute makes the
underlying decision discretionary is reflective of a general
recognition that there is no preclusion of such review if
otherwise ordinarily available. Indeed, our court held that we
retained jurisdiction over legal and constitutional questions
raised regarding BIA discretionary decisions even before
Congress so stated in the REAL ID Act, further confirming
the strength of the presumption of reviewability. See, e.g.,
Romero-Torres v. Ashcroft, 327 F.3d 887, 890 (9th Cir. 2003)
(explaining that IIRIRA did not eliminate our jurisdiction
over purely legal questions) (citing Molina-Estrada v. INS,
293 F.3d 1089, 1093–94 (9th Cir. 2002); Montero-Martinez
v. Ashcroft, 277 F.3d 1137, 1144 (9th Cir. 2002)); Torres-
Aguilar v. INS, 246 F.3d 1267, 1270–71 (9th Cir. 2001)
BONILLA V. LYNCH 21
(holding that we had jurisdiction to review a BIA decision for
the denial of due process).
Our recent decision in Singh v. Holder, 771 F.3d 647 (9th
Cir. 2014), confirms that we may review denials of sua
sponte reopening where, unlike in Ekimian and similar cases,
there is “law to apply” in doing so. Singh argued in his
petition for review that the Board abused its discretion when
it erroneously concluded that it lacked authority under
8 C.F.R. § 1003.2(a) to reopen his exclusion proceedings so
that he could pursue an adjustment of status application.
Singh, 771 F.3d at 650. We concluded that “Ekimian [did] not
preclude our jurisdiction.” Id. The jurisdictional bar
announced in Ekimian, we explained, “rests on the absence of
a judicially manageable standard for us to evaluate the BIA’s
exercise of discretion in ruling on a motion to reopen.” Id. In
Singh, however, the BIA did not “deny[] a motion to reopen
as an exercise of discretion”; it “conclude[d] that it lack[ed]
the authority to reopen.” Id.
Singh held that the Board’s conclusion as to its lack of
authority was contrary to plain statutory language and our
court’s precedents, and thus was “legal error.”7 Id. at 653.
7
Specifically, the Board denied Singh’s motion to reopen in reliance on
Matter of Yauri, 25 I. & N. Dec. 103 (BIA 2009). Matter of Yauri
involved an arriving alien who filed with the BIA a motion to reopen sua
sponte her removal proceedings and then continue them indefinitely to
permit her to pursue an adjustment of status application before United
States Citizenship and Immigration Services (“USCIS”). 25 I. & N. Dec.
at 103-04. The Board denied Yauri’s motion to reopen. It noted that
because Yauri was an arriving alien, USCIS, not the BIA, had jurisdiction
over her adjustment application. Id. at 107. It then reasoned that Yauri
effectively was seeking a stay of removal pending adjudication of her
adjustment application; considered whether it had authority to issue a stay,
22 BONILLA V. LYNCH
Singh then granted the petition for review and remanded the
case to the Board for an exercise of its discretion—that is, for
a decision whether there were truly exceptional
circumstances, a decision that remains unreviewable under
Ekimian. Id. Singh thus limited our review to the Board’s
legal conclusion—that, because of legal preclusion, it could
not exercise its discretion.
There is little distinction as to judicial reviewability
between the situation in Singh and the circumstances here.
Bonilla’s contention, upon which we elaborate below, is that
the Board misunderstood the parameters of § 212(c) relief as
applied to a legal permanent resident who had been deported
and, based on that misunderstanding, concluded that it would
not exercise its sua sponte authority to reopen because it
would, in the end, lack the legal authority to grant the relief
requested. Just as in Singh, there is “law to apply” in
reviewing that question—here, the substantive law governing
§ 212(c) relief when there has been a deportation of a lawful
permanent resident. Reviewing that legal question will simply
rather than asking whether it had authority to reopen and continue Yauri’s
proceedings; and concluded that it lacked such authority. Id. at 108-10.
“We decline[d] to follow Yauri” because its interpretation of 8 C.F.R.
§ 1003.2(a) was “contrary to the plain language of the regulation.” Singh,
771 F.3d at 652. Because § 1003.2(a) “plainly and unambiguously states
that ‘[t]he Board may at any time open or reconsider on its motion any
case in which it has rendered a decision,” we explained, the Board in fact
did have authority to reopen Singh’s proceedings under § 1003.2(a). Id.
(alteration in original). We then further explained that the Board’s
conclusion that it lacked the authority to reopen Singh’s case was contrary
to our case law holding that the Board had jurisdiction to grant a motion
to reopen to provide time for USCIS to adjudicate a pending adjustment
application. Id. (citing Kalilu v. Mukasey, 548 F.3d 1215, 1218 (9th Cir.
2008)).
BONILLA V. LYNCH 23
assure that the Board’s decision whether there is a “truly
exceptional situation” meriting sua sponte relief is made on
a proper understanding of the underlying law.
We therefore conclude that, as in Singh, this court has
jurisdiction to review Board decisions denying sua sponte
reopening for the limited purpose of reviewing the reasoning
behind the decisions for legal or constitutional error. If, upon
exercise of its jurisdiction, this court concludes that the Board
relied on an incorrect legal premise, it should “remand to the
BIA so it may exercise its authority against the correct ‘legal
background.’” Pllumi, 642 F.3d at 160 (quoting Mahmood,
570 F.3d at 469). Once it does so, this court will have no
jurisdiction to review the sua sponte decision, as Ekimian
instructs.
In so ruling, we join three other circuits—the Second,
Third, and Tenth.8 See Salgado-Toribio, 713 F.3d at 1271;
Pllumi, 642 F.3d at 160 (“[W]hen presented with a BIA
decision rejecting a motion for sua sponte reopening, we may
exercise jurisdiction to the limited extent of recognizing when
the BIA has relied on an incorrect legal premise.”);
Mahmood, 570 F.3d at 469 (“[W]here the Agency may have
8
We note that the government’s brief did not address the judicial review
question we here address. And, at oral argument, the government’s
attorney did not answer the court’s inquiry as to the propriety of the
position adopted by the other circuits on the limited reviewability of
denials of sua sponte reopening. The lawyer maintained that he was not
“authorized” to take a position on the issue. Or. Arg. at 13:06-13:50. Such
reticence is unacceptable. Where an important issue is directly raised by
the opposing party and, on one view of the record at least, is necessary to
decide to reach a reasoned conclusion, we rely on attorneys appearing in
our court, including attorneys for the government, to assist us in analyzing
and evaluating the issues properly before us.
24 BONILLA V. LYNCH
declined to exercise its sua sponte authority because it
misperceived the legal background and thought, incorrectly,
that a reopening would necessarily fail, remand to the Agency
for reconsideration in view of the correct law is
appropriate.”); see also Anaya-Aguilar v. Holder, 697 F.3d
1189, 1190 (7th Cir. 2012) (“[W]e do not mean to foreclose
review of the Board’s denial of a motion to reopen sua sponte
in cases where a petitioner has a plausible constitutional or
legal claim that the Board misapplied a legal or constitutional
standard.”). To our knowledge, no circuit squarely presented
with this issue has held to the contrary.9
3. Application of Jurisdiction to the Board’s Denial of
Bonilla’s Motion to Reopen Sua Sponte
We turn to the limited legal question over which we do
have jurisdiction—was the Board’s denial of Bonilla’s
motion to reopen sua sponte premised on an erroneous legal
understanding?
Bonilla contends that the Board refused to grant his
motion for sua sponte reopening despite the substantial
change in the law worked by Judulang because it believed,
incorrectly, that Bonilla had lost his lawful permanent
resident status when he was deported and, even if reopening
were granted, could not regain it. As a consequence, posits
Bonilla, the Board believed he could never have sufficient
lawful presence to become eligible for § 212(c) relief,
because he had accrued fewer than seven years of lawful
9
The Eighth Circuit has expressed some skepticism about the holdings
in Pllumi and Mahmood. See Barajas-Salinas v. Holder, 760 F.3d 905,
908 n.* (8th Cir. 2014).
BONILLA V. LYNCH 25
domicile in the United States at the time the Board issued its
final order of deportation. See 8 U.S.C. § 1182(c) (1996).
We agree with Bonilla that any such conclusion about the
irrevocable loss of lawful permanent resident status would be
legally incorrect. Generally, an alien’s lawful permanent
resident status ends upon entry of a final administrative order
of deportation. Matter of Lok, 18 I. & N. Dec. 101, 105 (BIA
1981). But if the BIA grants a motion to reopen, or a
reviewing court holds that the BIA should have granted a
motion to reopen, the final deportation order is vacated—that
is, it is as if it never occurred. Nken v. Holder, 556 U.S. 418,
429 n.1 (2009); see also Plasencia-Ayala v. Mukasey,
516 F.3d 738, 745 (9th Cir. 2008) (explaining that “[s]everal
courts of appeals, including” the Ninth Circuit, “have held
that a grant of a motion to reopen vacates the final order of
deportation”), overruled on other grounds by Marmolejo-
Campos v. Holder, 558 F.3d 903 (9th Cir. 2009) (en banc).
The previously terminated immigration proceedings thus are
reinstated, and the alien is restored to his prior status. See
U.S. Immigration and Customs Enforcement, Facilitating the
Return to the United States of Certain Lawfully Removed
Aliens 2 (2012), https://www.ice.gov/doclib/foia/dro_polic
y_memos/11061.1_current_policy_facilitating_return.pdf
(“[W]hen a PFR is granted that returns a former LPR to the
posture of a pre-order alien, the alien will once again, in
contemplation of law, be an LPR even though removal
proceedings may still be pending before EOIR on remand
from the circuit court.”).10 Here, were the Board to grant
10
See also Contreras-Bocanegra v. Holder, 678 F.3d 811, 818-19 (10th
Cir. 2012) (en banc) (“When the Board grants a motion to reopen, this
action vacates the underlying removal order and restores the noncitizen to
her prior status.”); Bronisz v. Ashcroft, 378 F.3d 632, 637 (7th Cir. 2004)
26 BONILLA V. LYNCH
Bonilla’s motion to reopen sua sponte, his previous
deportation proceedings would be reinstated and he would be
restored to his prior status as a lawful permanent resident,
unless and until the new proceedings result in a removal
order.
In Bonilla’s case, restoration of his lawful permanent
resident status could result in acquisition of seven years of
unrelinquished lawful domicile. Bonilla was admitted as a
lawful permanent resident on February 28, 1989. The BIA
issued its final order of deportation on October 17, 1995,
which stopped the clock four months short of the necessary
seven years. See, e.g., Foroughi v. INS, 60 F.3d 570, 575 (9th
Cir. 1995) (“When an order of deportation is administratively
final, it ends the accrual of lawful permanent residence
time.”). But Bonilla was not deported to El Salvador until
March 13, 1996. Thus, if his lawful permanent resident status
were restored, he would have accrued unrelinquished lawful
domicile from February 28, 1989, to March 13, 1996, a
period of just over seven years.
The Government did not engage with the merits of the
alleged legal error in its brief or at oral argument. Instead, it
maintained that the Board did not make the ruling of law
Bonilla attributes to it. We disagree.
(“[T]he grant of a motion to reopen vacates the previous order of
deportation or removal and reinstates the previously terminated
immigration proceedings.”) (drawing on Lopez-Ruiz v. Ashcroft, 298 F.3d
886, 887 (9th Cir. 2002)); Henry v. INS, 8 F.3d 426, 435 (7th Cir. 1993)
(“[I]f a petition for review were granted, the alien’s lawful permanent
resident status would be restored and the alien would then continue to
accumulate time toward the seven-year residency requirement [for
§ 212(c) relief].”).
BONILLA V. LYNCH 27
Bonilla had specifically addressed whether he had the
requisite time and status for § 212(c) relief in his reply brief
to the Board.11 He explained how he could satisfy the
requirement, arguing that (1) “[i]f his case is reopened by the
Board, then Respondent would be restored back to the status
of a lawful permanent resident,” and (2) as a lawful
permanent resident from the time of entry until he was
deported, he would have been lawfully domiciled for more
than seven years.12
The relevant portion of the Board’s decision reads:
The respondent was not eligible for either a
waiver of inadmissibility or adjustment of
status at the time a final order had been
entered by the Board on October 17, 1995, or
within the time period to file a timely motion
to reopen, or on or before September 30,
11
At the end of its discussion of Bonilla’s eligibility for § 212(c) relief,
after having ruled that he had lost his permanent resident status before he
had accrued seven years of lawful residency, the Board stated that Bonilla
had not “addressed the effect of his deportation” on his ability to meet the
unrelinquished lawful domicile requirement. The Board could not have
meant that Bonilla had waived the issue of the impact of his deportation
on his period as a lawful permanent resident, as he did raise and discuss
it. And, as recounted in the text, the Board ruled on the merits of the
matter. So the Board’s comment on Bonilla’s briefing was simply that
Bonilla’s explanation was insufficient, given the Board’s understanding
of the pertinent law. It is that legal understanding that we hold to be in
error.
12
Bonilla’s reply brief contained a factual error: it stated he was
deported on May 30, 1996, but he actually was deported on March 13,
1996. The error is irrelevant to Bonilla’s reasoning, and does not change
the ultimate conclusion that he satisfied the seven-year requirement.
28 BONILLA V. LYNCH
1996. Under the controlling authority at that
time, the respondent was not eligible for a
waiver of inadmissibility under former section
212(c) of the Act due to his firearms
conviction. . . . Moreover, the respondent’s
lawful permanent resident status terminated
upon the entry of the final administrative
order by the Board, and he no longer accrued
lawful domicile. Matter of Lok, 18 I&N Dec.
101 (BIA 1981). . . .
Based on the totality of the circumstances
presented in this case, and the arguments
raised in the motion and its supplements, we
conclude that sua sponte reopening of the
respondent’s deportation proceedings is
inappropriate. The respondent lost his lawful
permanent resident status upon this Board’s
entry of a final order on October 17, 1995. See
Matter of Lok, supra. The final deportation
order was lawfully executed on March 13,
1996, and the respondent returned to El
Salvador. His deportation “is a transformative
event that fundamentally alters the alien’s
posture under the law.” Matter of
Armendarez, 24 I&N Dec. 646, 656 (BIA
2009). Despite the change in law set forth in
Judulang v. Holder, supra, we do not find that
proceedings should be reopened. The
respondent has not addressed the effect of his
deportation on his current eligibility for a
212(c) waiver (whether he can meet the
lawful unrelinquished domicile requirement)
....
BONILLA V. LYNCH 29
We are persuaded that the Board based its decision on the
asserted legal error. Quoting Matter of Armendarez, 24 I. &
N. Dec. 646, 656 (BIA 2009), the Board characterized
Bonilla’s deportation as “a transformative event that
fundamentally alters the alien’s posture under the law.” And
the Board twice stated that Bonilla’s lawful permanent
resident status terminated upon the Board’s entry of a final
order of deportation on October 17, 1995, and definitively
held that Bonilla therefore “no longer accrued lawful
domicile.” We see no way to understand these statements
other than as a ruling that Bonilla had permanently lost his
legal status and so could not meet the § 212(c) lawful
domicile accrual requirements, even if his firearms conviction
were not a barrier to relief, and even if reopening were
granted on that basis.
In sum, the Board ruled on the premise that, because his
deportation was a “transformative event,” Bonilla’s lawful
permanent resident status would not be restored were the
Board to reopen his deportation proceedings, and so Bonilla
would be short of the requisite unrelinquished lawful
domicile needed for § 212(c) relief. That legal ruling is
incorrect, as we have explained. In fact, were reopening
granted because of Judulang, Bonilla’s lawful permanent
resident status would be restored as if it had never lapsed, and
he would have been lawfully present at least until his original
deportation, a period of (just) more than seven years.
The Board must therefore revisit its sua sponte reopening
decision on a proper understanding of its authority to grant
Bonilla relief if reopening is granted. If, on remand, the
Board again declines to exercise its sua sponte authority to
reopen, and does so without relying on a constitutionally or
legally erroneous premise, its decision will not be reviewable.
30 BONILLA V. LYNCH
CONCLUSION
For the foregoing reasons, we deny Bonilla’s petition for
review as to his motion to reopen for adjustment of status and
the equitable tolling question. We exercise jurisdiction over
Bonilla’s petition for review as to his motion to reopen sua
sponte for the sole purpose of considering whether the Board
based its decision on a legal error. Because we conclude it did
so, we vacate and remand to the Board to exercise its
discretion against the correct legal framework.
GRANTED IN PART, VACATED, AND
REMANDED, AND DENIED IN PART.
The parties shall bear their own costs.