Mejia-Hernandez v. Holder
2011 U.S. App. LEXIS 1699
| 9th Cir. | 2011Background
- Mejia-Hernandez, a Guatemalan citizen, seeks review of a BIA decision reinstating a deportation order after vacating an IJ’s sua sponte reopening, and challenges NACARA timing and notice issues.
- Mejia received two unclaimed certified mail notices at his last known address for a 1997 removal hearing, which the panel treated as effective notice.
- Mejia later relied on a fraudulent attorney to file a NACARA 203(c) motion in 1998, resulting in a deficient filing and a delayed likelihood of relief.
- The IJ sua sponte reopened proceedings in 2005 for multiple reasons, but the BIA overturned that reopening and denied review on notice and other grounds.
- Mejia eventually argued that equitable tolling should apply to NACARA’s deadline due to fraudulent counsel and efforts to pursue relief for family hardship, leading to a tolling dispute and remand.
- The court ultimately holds that Mejia did not receive a due‑process‑defeating lack of notice, but that the NACARA deadline is equitably tolled; the sua sponte reopening issue is reviewed only to the extent permitted by Kucana, and the case is remanded for further proceedings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Mejia received proper notice of the 1997 hearing | Mejia argues actual notice was lacking | Certified mail at last known address suffices for notice | Mejia received effective notice; no reopening warranted |
| Whether the BIA’s reversal of the IJ’s sua sponte reopening is reviewable | Kucana and Zetino dictate reviewability of agency actions | Ekimian bars review of sua sponte reopening | Review is limited; prior holdings affirmed on notice issue; remand for further proceedings as to tolling not limited by Ekimian |
| Whether Mejia’s NACARA deadline tolling is warranted due to fraudulent counsel | Mejia reasonably relied on fraud; tolling should apply | Lack of due diligence defeats tolling | Equitable tolling applies; period tolled from March 31, 1998 to April 30, 2005; NACARA deadline tolled until October 11, 2005 |
| When did Mejia definitively learn of the fraud and trigger tolling | End date of tolling tied to discovery of fraud | Discovery occurred earlier; tolling terminated earlier | End date April 30, 2005; tolling begins March 31, 1998 |
| What is the remedy on tolling and final relief | Motion to reopen timely with tolling | Untimely under NACARA | Motion timely meets NACARA § 203(c) requirements when tolling applied; remand for consistent relief |
Key Cases Cited
- Kucana v. Holder, U.S. , 130 S. Ct. 827 (2010) (Supreme Court 2010) (presumption favoring judicial review; sua sponte reopening review discussed)
- Ekimian v. INS, 303 F.3d 1153 (9th Cir. 2002) (9th Cir. 2002) (precedent on reviewability of BIA sua sponte reopening (overruled in part by Kucana))
- Albillo-De Leon v. Gonzales, 410 F.3d 1090 (9th Cir. 2005) (9th Cir. 2005) (equitable tolling of NACARA 203(c) deadlines; fraud context)
- Singh v. Gonzales, 491 F.3d 1090 (9th Cir. 2007) (9th Cir. 2007) (definitive learning of fraud triggers tolling; due diligence standard)
- Iturribarria v. INS, 321 F.3d 889 (9th Cir. 2003) (9th Cir. 2003) (recognition of equitable tolling when deception or error prevents filing)
- Arrieta v. INS, 117 F.3d 429 (9th Cir. 1997) (9th Cir. 1997) (constructive notice via certified mail can be sufficient)
- Zetino v. Holder, 596 F.3d 517 (9th Cir. 2010) (9th Cir. 2010) (discusses reviewability principles and Heckler v. Chaney implications)