958 F.3d 1225
9th Cir.2020Background
- Elizabeth Lona, a Mexican native and lawful permanent resident since 1989, was convicted of petty theft (16-month sentence) and second-degree burglary in California and placed in removal proceedings.
- An Immigration Judge ordered Lona removed as removable for an "aggravated felony"; Lona waived appeal and was removed to Mexico in April 2013.
- After Ninth Circuit decisions (Lopez-Valencia, Rendon) and Descamps, Lona moved (about 2.5 years after removal) for sua sponte reconsideration, arguing those decisions eliminated the aggravated-felony basis for her removal.
- Lona also argued she was entitled to equitable tolling of the 30-day statutory reconsideration deadline because she filed as soon as she learned of the change in law.
- The BIA affirmed the IJ, finding the motion untimely, noting Lona waived appeal and was removed, and that her circumstances were not "truly exceptional" warranting sua sponte relief.
- The Ninth Circuit denied the petition for review, holding (1) the BIA’s implicit denial of equitable tolling was reasonable, (2) the BIA’s denial of sua sponte reconsideration was not tainted by legal or constitutional error under Bonilla, and (3) the court would not adopt a broad "settled course" exception to review the BIA’s discretionary sua sponte decisions.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Equitable tolling of motion-to-reconsider deadline | Lona: filed as soon as practicable after Lopez-Valencia; delay beyond her control; equitable tolling warranted | DHS/BIA: Lopez-Valencia not retroactively applied to someone who waived appeal and was removed; Lona failed to show diligence | Denied—BIA reasonably found no due diligence or extraordinary impediment; implicit denial of tolling not arbitrary or contrary to law |
| Whether BIA denial of sua sponte reconsideration involves legal/constitutional error under Bonilla | Lona: Lopez-Valencia was a "fundamental change" and BIA erred in denying sua sponte relief as final/waiver/removal | BIA: recognized fundamental-change precedent but concluded facts (waiver, removal, failure to raise earlier) made case non-exceptional | Denied—BIA applied correct legal standard and did not rest on an incorrect legal premise; no Bonilla error |
| Whether a "settled course of adjudication" constrains BIA discretion (Third Circuit approach) | Lona: BIA precedent treating fundamental changes as "exceptional" creates a settled policy that BIA deviated from | DHS/BIA: even if prior grants occurred, BIA retains unfettered discretion; consistency evidence insufficient to bind agency | Denied—Ninth Circuit rejects a broad "settled course" exception here; such review would improperly second-guess discretionary decisions |
| Jurisdiction to review BIA’s exercise of sua sponte authority | Lona: urges limited Bonilla review to correct errors where BIA misapplied precedent | DHS/BIA: Bonilla permits review only for clear legal or constitutional error; otherwise agency discretion is unreviewable | Held: Court has limited Bonilla jurisdiction but found no legal error to review; petition dismissed |
Key Cases Cited
- Bonilla v. Lynch, 840 F.3d 575 (9th Cir. 2016) (carved out limited review when BIA denial of sua sponte relief rests on incorrect legal premise)
- Mejia-Hernandez v. Holder, 633 F.3d 818 (9th Cir. 2011) (sua sponte BIA authority generally committed to agency discretion)
- Ekimian v. INS, 303 F.3d 1153 (9th Cir. 2002) (BIA’s decision whether to invoke sua sponte authority is discretionary and not subject to judicial review)
- Menendez-Gonzalez v. Barr, 929 F.3d 1113 (9th Cir. 2019) (reaffirmed Bonilla but discussed potential "settled course" exception)
- Lopez-Valencia v. Lynch, 798 F.3d 863 (9th Cir. 2015) (applied Descamps methodology to California theft statute; relevant change-of-law decision cited by Lona)
- Descamps v. United States, 570 U.S. 254 (2013) (clarified categorical approach to determining violent felonies; methodology used in subsequent immigration analyses)
- Singh v. Holder, 771 F.3d 647 (9th Cir. 2014) (found legal error where BIA incorrectly believed it lacked authority to reopen)
- Lugo-Resendez v. Lynch, 831 F.3d 337 (5th Cir. 2016) (equitable tolling and post-departure reopening examined where BIA precedent was overturned)
- INS v. Yueh-Shaio Yang, 519 U.S. 26 (1996) (agency ‘‘settled policy’’ does not necessarily bind an otherwise unfettered discretion; discussed in rejecting broad "settled course" review)