*3 ZOUHARY, District Judges, and JACK Judge.* GOODWIN; by Judge Partial Opinion by Judge Partial Dissent and Concurrence ZOUHARY.
OPINION GOODWIN, Judge: Circuit immi- pending In a number of view of calling question into the con- gration cases INS, vitality of Ekimian v. tinued (9th Cir.2002), we must decide F.3d 1153 can review a BIA decision whether we in the context of a claim against reopening affirm the BIA equitable tolling. of We regarding notice. do not re- decision We re- sponte reopening. the sua We view tolling, equitable verse the BIA decision on agency pro- and remand to the for further ceedings.
I. AND PROCEDURAL FACTS HISTORY Mejia-Hernandez, Bernardino Eduardo Guatemala, petitions of for review a citizen Immigration Appeals of a Board (“BIA”) Immigration vacating Cifuentes, Knapp and Claire Ci- Andrew (“IJ”) suspension deportation Judge’s Associates, Angeles, Knapp fuentes & Los reinstating deportation. an order of CA, petitioner. for the BIA found that received effec- original hearing, merits T. tive notice of Jager, Glen Office Justice, reopen- to the sua was not entitled Litigation, Department U.S. IJ, D.C., by the and was entitled respondent. ing granted for Washington, * Ohio, by designation. sitting Zouhary, United States The Honorable Jack Judge District of District for the Northern Ramos, tolling of the deadline for a who assxxredhim that the INS was fee, Nicaraguan requiring incorrect problem. American Relief Ramos would correct Adjustment and Central 203(c). (NACARA) Ramos never refiled. Pub.L. No. 105- Act (1997), amended Stat. 2160 15, 1998, Mejia On November Lopez (1997). 105-139, 111 Pub.L. No. Stat. years Mejia married. For almost seven Lopez paid Ramos to handle their the United States on
Petitioner entered cases. Ramos continued to assure them February 1993. On November being that their cases prop- were handled asylum. asylum An applied erly. Lopez granted *4 ap- When was an guerillas officer found that had beaten Me- claim, pointment concerning her NACARA death, jia point of near but that he however, Ramos refused to attend with any on account of had not been harmed secretary her. Ramos’s then admitted to protected grounds. The officer referred Lopez that Ramos was not a licensed at- IJ, Mejia Immigration to an and the and 7, 2005, torney. January On Lopez was (“INS”) Naturalization Service served Me- granted Mejia, relief under NACARA. jia with an Order to Show Cause for enter- concerned that being his case was not han- ing inspection. Mejia the U.S. without properly, dled present consulted his attor- proceeded pro presented se and himself at ney 30, April for the first time on 2005. hearing through several dates 1996. On occasion, hearings one were rescheduled 5, 2005, July Mejia On filed a motion to for insufficient time and on another the IJ reopen to deportation rescind the order of appear. failed to At the last of these absentia, entered in renewed his motion to Mejia appearances, proper submitted a NACARA, reopen under and raised the form, change of and of a address notice 11, equitable tolling. issue of On August hearing subsequently rescheduled was 2005, an reopened proceedings IJ the sua by sent to his new address certified mail. (1) sponte for the following stated reasons: delivery attempts, package After two the Mejia’s original asylum timely claim was unclaimed, January (2) remained and on adjudicated; Mejia, filed but never with Mejia deported an IJ ordered wife, (3) children; his had two U.S.-born absentia. Mejia’s granted per- wife had been lawful NACARA; through manent resident status 31, 1998, Mejia, along On March (4) family hardship and the would suffer if Lopez, Marta Odelia Perez the mother of Mejia’s favorably adjudi- claims were not children, his two consulted U.S.-born cated. The IJ further noted that such a Bryan of the Ramos Centro de Assistencia spirit decision was within the and intent of falsely rep- Social Guatamalteco. Ramos NACARA. attorney resented himself as an licensed to Mejia’s At practice immigration February law. On behalf of 2006 merits Mejia Lopez, hearing, both Ramos filed for En- Customs 203(c). (ICE) relief under NACARA Ramos forcement Assistant Chief Counsel Mejia Mejia eligible statutorily eligible told he would be for residen- stated that was wife, cy through despite the fact that for NACARA relief and had established Mejia Lopez yet legally requisite were not mar- the hardship. appeal, On howev- 13, 1998, er, Mejia discretion, in- April opposed, ried. On ICE as an abuse of government sponte reopening, formed that his motion the IJ’s sua as the sole rejected Mejia had due to the failxire to to the BIA. then appeal been issue Mejia proper include a fee. met with raised the issue of notice for his $110 known provides The BIA overturned last address sufficient no- hearing. service, tice to effect whether or reopening, rejected IJ’s sua signed or and letter was the alien tolling arguments, equitable notice person responsible at his address. In re deportation order. reinstated the (BIA 21 I. Grijalva, & N. Dec. to this court. timely appealed 1995). Grijalva that “where held service REVIEW II. OF STANDARDS a notice of deportation1 proceeding by certified through sent mail United BIA novo the The reviewed de proof States Postal Service and there is concerning tolling of finding IJ’s attempted delivery and notification cer- deadline. We review NACARA mail, a strong presumption tified effec- novo, the ex except de BIA’s decision tive This service arises.” Id. court are af agency interpretations tent “that has held notice certified mail sent Garcia-Quintero deference. forded to an alien’s last known address can be (9th Gonzales, 455 F.3d Cir. [Immigration sufficient and Na- 2006). BIA’s reviewed here Act, tionality] even signed if no one for it.” *5 single is and issued a unpublished I.N.S., (9th v. Arrieta 117 F.3d 431 BIA; it carry Ofthe does not member Cir.1997). law, it is only accorded Skid- force thor proportional deference to its more This strong presumption effec reasoning, oughness, consistency, and abil notice mail contrasts tive certified with ity (citing Id. persuade. to at 1012-15 a weaker that results presumption from Co., & 323 65 Skidmore U.S. Swift I.N.S., regular mail service. Salta v. 314 (1944)). 124 S.Ct. 89 L.Ed. 1079(9th Cir.2002). F.3d “Where a actually a petitioner proceeding initiates to III. DISCUSSION benefit, a appears obtain at earlier Mejia proper A. received notice of his hearing, and has no to motive avoid the hearing and not entitled to a
1997 is hearing, petitioner a sworn from affidavit reopening hearing. of that that neither responsible party [he] nor a residing at received [his] address the no that,
Mejia argues although he had ordinarily tice should be sufficient to rebut hearing, constructive notice of his presumption [regular mail] deliv notice, actual never received and should ery.” Id. to BIA reopen. therefore allowed The be rejected this correctly argument, based on Mejia initiated to proceedings his re- hearing twice-unclaimed notice of sent benefit, ceive a at earlier appeared hear- mail to proper certified address. ings, had no motive known to avoid his wife, hearing, and, together An alien ordered removed in absentia his with statutory right only has a to to other seek adult resident his ad- petition dress, signed case and relief. See 8 U.S.C. sworn affidavit he did 1229a(b)(5)(C)(ii); § Mejia C.F.R. not receive meets the notice. Salta 1003.23(b)(4)(h). § But the BIA has held test for overcoming presumption the weak . bearing regular that certified mail notice of the of constructive notice mail. Mejia original hearing presented removal sent to an alien’s But has no additional evi- change "deportation” point The of terms this are identical. from otherwise Com- "removal,” amendment, 1252b(c)(3)(B) by legislative pare § affected the older 8 U.S.C. 1229a(b)(5)(C)(ii). inconsequential is § as the and old statutes the newer 8 new U.S.C. petitioner’s stronger presump- overcome the access federal courts. dence to mail in by the use of certified Id. tion created Department The of Homeland his case. statutory The explicit Court noted refer- (DHS) into evidence the Security put has employed by Congress ences to make cer- envelope mail and certificates certified tain agency decisions unreviewable. Id. at attempted two but unclaimed de- showing 1252(a)(2)(B)). § (citing 831-32 8 U.S.C. address, at the correct which Me- liveries statutory None of these reservations of
jia’s
effectively
cannot
rebut.
evidence
however,
authority,
exempted from federal
Therefore,
Mejia
we hold that
received
court review a BIA denial of a motion to
hearing
notice of his 1997
and is
effective
Kucana,
proceeding.
a removal
reopening
hearing
to a
of that
not entitled
1003.2(a).
840;
§
The overall thrust of Kucana suggests B. This court cannot review the BIA’s sponte that sua reopening should be sub- decision to overturn the IJ’s sua ject to review. There a longstanding sponte reopening. judicial tradition of review of reopenings cases; immigration sug- there is no statute
Next, Mejia would have us re available; gesting is not review there is a BIA decision to overturn the IJ’s view the review; presumption favoring and there is reopening of his case. The sua separation-of-powers against concern precedent pre contends that government giving authority the Executive Ekimian, withhold review. 303 F.3d vents such See judicial cases 'from review. See id. at 831. curiae, at 1159. and amicus *6 impression, Were this an issue of first a Council, counter American right might recognized. to review be Supreme ruling that a effec recent Court tively precedent. that Ku overturns See Kucana, however, Prior to this court — Holder, -, v. U.S. 130 S.Ct. cana and nine other found a circuits decision not (2010). 827, L.Ed.2d 694 “This court 175 reopen sponte to sua to be one that was jurisdiction ju has to determine whether agency committed to discretion law Gonzales, risdiction exists.” Morales v. therefore, and, unreviewable. See Ekimi- (9th Cir.2007) (internal 972, 478 F.3d 977 an, 1159; 303 F.3d at Tamenut v. Muka- omitted). agree marks with quotation We (8th Cir.2008) 1000, sey, 521 F.3d 1003-04 government’s position. the (en banc) (summarizing prec- other circuit 701(a)(2). edents); §
The Kucana Court found that a
5
Unlike Ku-
U.S.C.
Kucana,
cana,
was reviewable.
the Ekimian court was
looking
fa
presumption
statutory
regulatory language
(1985) periods § The Ku- when 5 U.S.C. fraud, opinion on or expressed deception, no from because cana Court may review a BIA error, courts long petitioner federal acts with whether as sponte, reopening sua deny to discovering deception, diligence due in an unreviewability grounded is I.N.S., where fraud, or error.” Iturribarria Kucana, 701(a)(2) rationale. APA (9th Cir.2003). 889, 897 321 F.3d 839, n. 18. S.Ct. rep fraudulent When the issue is turns, according reopening
Sua resentation, period “the limitations is BIA, has petitioner whether a petitioner definitively tolled until “exceptional circumstances” demonstrated Singh v. J-J-, learns of counsel’s fraud.” Gon 21 I. Matter justify the action. to Cir.2007) (9th (BIA 1997). zales, The Eki 491 F.3d & N. Dec. omitted). (internal meaningful In quotation could not find marks mian court judge satisfaction of definitively standard which did not Singh, petitioner circumstances” test. Eki “exceptional against him perpetrated learn of the fraud mian, significant F.3d at 1159. No suspicious of merely when he had become occurred since Ekimian that changes have lawyer’s family fraud and members his sufficiently to find a panel would allow this get lawyer. him he should another told standard, to re meaningful and allow us Id. sponte reopening.
view sua
Equitable tolling
“applied
in sit
reasonably
relied on the ad-
C.
where,
diligence,
despite
uations
all due
“attorney,”
his fraudulent
vice of
tolling is
party requesting equitable
tolling
thereby equitably
dead-
bearing
information
unable to obtain vital
line for his motion to
the claim.”
on the existence of
Albillo-De
NACARA.
(brackets
Leon,
827 ” discretion.’ Id. at tolling. agency’s We hold exercise of equitable the basis the NA 105 timely motion meets S.Ct. that this 203(c) making Me requirements, CARA agen- however does not allow an Heckler relief. jia eligible for NACARA judicial cy to restrict review its own by declaring those decisions decisions dis-
IV. CONCLUSION cretionary, by providing or no standard for notice of his Mejia received effective review. This would have the undesirable Kucana, BIA hearing. Despite 1997 allowing agencies to insulate effect of sponte reopening reversal of the IJ’s sua review, judicial themselves from which subject by this court. We is not to review ‘presumption “contravenes the ... “that BIA decisions. How- do not disturb these generally executive determinations are ever, BIA decision that we reverse the ’” Zetino, subject judicial to review.” 596 application was not sub- Mejia’s NACARA (Lawson, J., concurring) (citing F.3d 529 tolling and remand ject to 839). Kucana, 130 S.Ct. at consistent with this proceedings further decision. Moreover, recently published this Court PART, IN DENIED IN
GRANTED
opinion
an amended
in Zetino which casts
REMANDED,
party
each
PART AND
precedential
further doubt on the
value of
version,
bear
own costs.
original
its
Ekimian. Unlike
opinion
the BIA’s denial
amended
reviews
ZOUHARY,
Judge, concurring
District
an
petitioner’s
accept
motion to
untime-
dissenting
part
concurring
in
in
part,
ly
precisely
process
That
brief.
judgment:
in the
suggested
original concurring opin-
in the
Zetino,
majority’s
ion.
F.3d
1012-13
I concur with most of the
See
622
(9th Cir.2010)
517).
(amending
I re-
596
judgment.
decision and with the
F.3d
however,
ways,
regard
spectfully part
neither Zetino nor
deal
While
Kucana
majority’s conclusion that we are
ability
with the exact issue at hand —our
the BIA’s decision to
unable to review
review the BIA’s decision to overturn the
sponte
motion to
overturn
IJ’s sua
sponte reopening
sua
do not be-
IJ’s
—I
Supreme
I
Court’s
reopen.
believe
any
there is
reason to treat review of
lieve
—
Holder,
in
v.
U.S.
Kucana
the BIA’s decision to reverse
IJ’s sua
-,
Ann Henshaw & Defendants, Corporation; Pneumo Abex Whitman Corporation, Defendants- Appellees. AVILA; Abbot; Ariella Adonnamarie
M. Avila; Donna M. Ariella Adonnamarie Abbot; Louise Judith N. Alva Melissa Abbot; Abbot; Melissa Louise Judith rez; Arlich; Aaron Gabriel Christina Alvarez; Arlich; N. Aaron Gabriel Arlich; Arlich; Michelle Jarrod Alan Arlich; Michelle Christina Jarrod Arlich; Arlich; Alan Matthew J. John Arlich; Arlich; Alan John Alan Mat (See Arlich, Pamela et al. Exhibit Jo Arlich; Arlich, Pamela et thew J. Jo Appeal full A of Notice of for list of (See Ap al. Exhibit A of Notice of plaintiff/appellants), Plaintiffs-Appel peal plaintiff/appel full for list of lants, lants), Plaintiffs-Appellants, v. Hydraulics, Inc.; Remco
WILLITS ENVIRONMENTAL Industries, Inc., M-C TRUST, REMEDIATION Defendants, Defendant, Corporation; Whitman Pneumo Abex Hydraulics, Inc.; Remco Pneumo Abex Corporation, Defendants- Corporation; Corporation; Whitman Appellees. Industries, Inc., pos M-C Debtor in Avila; Avila; M. Donna Bernadette Bankruptcy estate, session of the De Brown; Avila; Francisco I. Christine fendants-Appellees. Castillo; Dryden; Marnie Arletta Jean Avila; Gary Dryden; Dryden; Donna M. Ariella Lee Ar Adonnamarie Valder Abbot; Abbot; Ford; Ford; Melissa Louise Judith rita Garland W. G. Steve Alvarez; Arlich; Lewis; Lewis; Dorothy Liles; N. Aaron Gabriel Lois Arlich; McCann; McDaniel; Christina Michelle Lisa Jarrod Connie Arlich; Arlich; Clay McDaniel; Olin; Alan Alan Mat D. John Glen Jodi Arlich; Arlich, Olin; Phillips; thew et J. Pamela Jo Larie Christina Ram (See sey; Abbott; Ap al. A Exhibit of Notice of Ariella A. Marissa Anne Alvarez; Roy peal plaintiff/appel Alger; full list of Judith N. An lants), Plaintiffs-Appellants, Amerson; Arlich; drew Aaron Gabriel
