13 F.4th 991
9th Cir.2021Background
- Cui, a Chinese national, overstayed a work visa, applied for asylum, and missed her merits hearing on March 4, 2014; the IJ ordered removal in absentia that day, starting a 180‑day clock to file a motion to reopen.
- New counsel (Mr. Chen) improperly filed an immediate appeal to the BIA on April 1, 2014, instead of a motion to reopen before the IJ.
- On July 30, 2014 counsel attempted to file a motion to reopen with the IJ, but the immigration court clerk rejected the submission (noting wrong filing location and that counsel was not counsel of record); counsel did not refile before the August 31, 2014 180‑day deadline.
- The BIA returned the record to the IJ in October 2015 without deciding the merit of the improper appeal; Cui filed a second motion to reopen on November 4, 2016 based on an approved I‑130.
- The IJ and then the BIA denied the 2016 motion as untimely and for failing to allege "exceptional circumstances," and declined sua sponte reopening; the Ninth Circuit majority denied the petition for review.
- A concurring/dissenting opinion argued the BIA abused discretion by treating the clerk’s rejection as unreviewable and placing Cui in a Catch‑22; that judge would have remanded to permit adjudication of the July 2014 motion.
Issues
| Issue | Plaintiff's Argument (Cui) | Defendant's Argument (BIA/Government) | Held |
|---|---|---|---|
| Whether Cui’s July 2014 motion to reopen was filed (and thus tolled the 180‑day deadline) | The July 30, 2014 motion was timely filed to the IJ but was improperly rejected by court staff, so it should be treated as pending | The clerk properly rejected the filing; the motion was not filed and thus did not toll the statutory clock | Held: Motion was rejected and not filed; it did not toll the 180‑day deadline (BIA not reversed) |
| Whether the BIA’s October 2015 return of the record constituted a remand or tolled the deadline | The BIA’s return should be treated as a remand/return that preserved proceedings before the IJ | The BIA merely returned the record without action; under BIA precedent the 180‑day period was not tolled | Held: Return was not a remand that tolled the deadline; the IJ order became final after 180 days |
| Timeliness and merits of the November 2016 motion to reopen | The 2016 motion should be considered despite delay (or alternatively timeliness is excused) | The 2016 motion was filed well after the 180‑day window and did not allege exceptional circumstances | Held: 2016 motion untimely and independently fails to allege "exceptional circumstances"; denial affirmed |
| Whether equitable tolling or sua sponte reopening was required | Equitable tolling or sua sponte reopening was warranted because the clerk’s erroneous rejection prevented timely filing | No showing of deception, fraud, or due‑diligence failures; post‑order equities do not overcome statutory limits; sua sponte reopening discretionary and not required | Held: BIA did not abuse its discretion declining equitable tolling or sua sponte reopening; petition denied (though a dissent would remand) |
Key Cases Cited
- INS v. Doherty, 502 U.S. 314 (1992) (Attorney General has broad discretion to grant or deny motions to reopen)
- Najmabadi v. Holder, 597 F.3d 983 (9th Cir. 2010) (standard for reviewing BIA denial of motion to reopen: abuse of discretion)
- Azanor v. Ashcroft, 364 F.3d 1013 (9th Cir. 2004) (abuse‑of‑discretion standard explained)
- Iturribarria v. INS, 321 F.3d 889 (9th Cir. 2003) (equitable tolling when deception, fraud, or error prevented timely filing and petitioner acted with due diligence)
- Singh‑Bhathal v. INS, 170 F.3d 943 (9th Cir. 1999) (untimely motions to reopen may be denied as an exercise of discretion)
- Bonilla v. Lynch, 840 F.3d 575 (9th Cir. 2016) (limited review of BIA denial of sua sponte reopening for legal error)
- INS v. Rios‑Pineda, 471 U.S. 444 (1985) (post‑order equities obtained after a final deportation order generally do not create substantial equities)
- Rosales‑Martinez v. Palmer, 753 F.3d 890 (9th Cir. 2014) (limited circumstances in which courts may consider unfiled or extraneous documents when adequately described and relied on)