Mohamed Abbas v. Merrick Garland

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JAN 23 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MOHAMED KAMAL ELDIN ABBAS, No. 19-71664
Petitioner, Agency No. A096-684-420
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted November 18, 2022
San Francisco, California
Before: TASHIMA and PAEZ, Circuit Judges, and SESSIONS,** District Judge.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable William K. Sessions III, United States District Judge
for the District of Vermont, sitting by designation.
Mohamed Kamal Eldin Abbas (“Abbas”), a native and citizen of Egypt,
petitions for review of a decision by the Board of Immigration Appeals (“BIA”)
denying his motions to reconsider and to reopen removal proceedings. We review
the denial of a motion to reopen and a motion to reconsider for abuse of discretion.
See Cano-Merida v. INS, 311 F.3d 960, 964 (9th Cir. 2002). We review the
agency’s factual findings for substantial evidence. See Hernandez-Ortiz v.
Garland, 32 F.4th 794, 800 (9th Cir. 2022). We have jurisdiction under 8 U.S.C.
§ 1252. We grant the petition and remand for further proceedings consistent with
this disposition.
Abbas first argues that a defective Notice to Appear (“NTA”) deprived the
immigration court of jurisdiction over his removal proceedings. Our recent
decision in United States v. Bastide-Hernandez forecloses this argument, and we
therefore reject it. 39 F.4th 1187, 1188, 1192–93 (9th Cir. 2022) (en banc) (holding
that a defective NTA does not deprive the immigration court of subject matter
jurisdiction).
Abbas’s motion to reopen was untimely and number-barred, see 8 C.F.R.
§ 1003.2(c)(2), and his motion to reconsider was untimely, see 8 C.F.R.
§ 1003.2(b)(2). He has advanced two theories for overcoming these procedural
bars. First, he seeks application of an exception to the bars based on changed
country conditions relevant to his claims for asylum, withholding, and CAT relief,
2
see 8 C.F.R. § 1003.2(c)(3)(ii), and claims the BIA abused its discretion by failing
to review his evidence. The BIA decision included only a cursory
acknowledgement of the country conditions evidence rather than a substantive
analysis. This error was harmless, however, because the record does not establish
that there has been a material change in country conditions since Abbas’s initial
proceedings. See Malty v. Ashcroft, 381 F.3d 942, 945 (9th Cir. 2004).
Separately, Abbas argued in his motion to reopen that equitable tolling of the
time and number bars was warranted due to a change in law that made him newly
eligible to apply for cancellation of removal. The time and number bars applicable
to motions to reopen and reconsider are subject to equitable tolling. Perez-
Camacho v. Garland, 42 F.4th 1103, 1110 (9th Cir. 2022) (a noncitizen “can
secure review of a motion to reopen that would otherwise be time-and number-
barred if the deadline is subject to equitable tolling”). For equitable tolling to
apply, a petitioner must show “(1) that he has been pursuing his rights diligently,
and (2) that some extraordinary circumstances stood in his way and prevented
timely filing.” Holland v. Florida, 560 U.S. 631, 632 (2010). A change in law is an
extraordinary circumstance that warrants tolling of a noncitizen’s deadline to apply
for relief. See Lona v. Barr, 958 F.3d 1225, 1230–31 (9th Cir. 2020).
The BIA failed to analyze Abbas’s argument for equitable tolling based on
this change in law in its decision. The record establishes that Abbas is entitled to
3
equitable tolling with respect to this claim. In 2018, the Supreme Court held that
“[a] putative notice to appear that fails to designate the specific time or place of the
noncitizen’s removal proceedings is not a ‘notice to appear under section 1229(a),’
and so does not trigger the stop-time rule.” Pereira v. Sessions, 138 S. Ct. 2105,
2113–14 (2018) (quoting 8 U.S.C. § 1229b(d)(1)). The NTA in Abbas’s case did
not specify the date or time for Abbas’s appearance as required by statute. Abbas
therefore moved for reconsideration and reopening within one month of the
Pereira decision, as he had accrued the necessary period of physical presence since
receiving the deficient NTA. The record also indicates that Abbas vigorously
pursued his rights prior to Pereira. His actions were diligent, Pereira constituted
an extraordinary circumstance, and equitable tolling applies.
The BIA allowed for the possibility that the motion was not barred but
concluded that Abbas’s cancellation of removal claim nonetheless failed because
Abbas had stopped accruing continuous physical presence when the Immigration
Judge (“IJ”) entered an order of removal in 2012. A final removal order, however,
does not trigger the stop-time rule. Quebrado Cantor v. Garland, 17 F.4th 869, 870
(9th Cir. 2021). This basis for denial is thus contrary to law. Under Pereira and
Quebrado Cantor, the record does not reflect any event that would have stopped
the accrual of qualifying time since Abbas entered the United States in 2003. See
also Niz-Chavez v. Garland, 141 S. Ct. 1474, 1485 (2021) (holding that a
4
supplemental notice informing the noncitizen of the time and place of a hearing
does not trigger the stop-time rule). Accordingly, Abbas has accrued more than the
ten years of continuous physical presence required by the statute. 8 U.S.C.
§ 1229b(b)(1)(A).
The BIA also found, without discussion, that Abbas’s evidence was
insufficient to warrant a favorable exercise of discretion given that the IJ denied
Abbas’s claim for adjustment of status as a matter of discretion in 2011. Because
the BIA’s conclusion was arbitrary and not supported by substantial evidence, it
abused its discretion. Abbas’s cancellation application, which he properly attached
to his motion to reopen, shows that his mother’s health has declined significantly
since 2011. The other findings that formed the basis for the IJ’s negative
determination in 2011, such as the recency of Abbas’s criminal conduct, are
similarly outdated given the passage of time, the intervening change in the legal
classification of Abbas’s sole conviction, and his securing of state post-conviction
relief. See 8 U.S.C. § 1229b(b)(1)(B)-(C). The BIA’s failure to analyze any such
facts was an abuse of discretion as the agency did not provide a reasoned
explanation for its decision. See Movsisian v. Ashcroft, 395 F.3d 1095, 1098 (9th
Cir. 2005) (“We have long held that the BIA abuses its discretion when it fails to
provide a reasoned explanation for its actions.”). The record contains compelling
evidence of Abbas’s changed equities since 2011 that supports a favorable
5
discretionary determination, and the BIA was required to consider this evidence.
On this record, Abbas has submitted sufficient evidence to warrant the
application of equitable tolling. He has also established that he is prima facie
eligible for cancellation of removal, see Tadevosyan v. Holder, 743 F.3d 1250,
1255 (9th Cir. 2014) (explaining that “a prima facie case for relief is sufficient to
justify reopening”), and that it would be “worthwhile to develop the issues at a
hearing,” Matter of L-O-G-, 21 I. & N. Dec. 413, 420 (BIA 1996). We therefore
grant the petition and remand to the BIA for proceedings consistent with this
disposition.
PETITION GRANTED and REMANDED.
6