YUZI CUI, Petitioner, v. MERRICK B. GARLAND, Attorney General, Respondent.
No. 18-72030
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
September 23, 2021
Agency No. A205-542-606
FOR PUBLICATION
OPINION
On Petition for Review of an Order of the Board of Immigration Appeals
Argued and Submitted April 15, 2021 Pasadena, California
Filed September 23, 2021
Before: Richard A. Paez and Lawrence VanDyke, Circuit Judges, and Sharon L. Gleason,* District Judge.
Opinion by Judge VanDyke; Partial Concurrence and Partial Dissent by Judge Paez
SUMMARY**
Immigration
Denying
Cui was ordered removed in absentia on March 4, 2014, and her counsel appealed that order to the BIA. On July 30, 2014, counsel attempted to file before the IJ a motion to reopen, but the immigration court clerk rejected the motion, stating that Cui‘s counsel was not counsel of record and that, because there was a BIA appeal pending, the immigration court was the wrong filing location. Counsel did not refile the motion, but filed a motion to remand with the BIA. The BIA returned the case to the immigration court in 2015. In November 2016, counsel filed a second motion to reopen, which the IJ denied, and the BIA dismissed Cui‘s appeal.
The panel explained that, in In re Guzman-Arguera, 22 I. & N. Dec. 722 (BIA 1999), the BIA held en banc that it is without authority to consider a direct appeal from an in absentia order. Rather, a petitioner must first file a motion to reopen under
The panel concluded that the IJ‘s in absentia order became final on August 31, 2014—at the end of the 180-day deadline. At that point, Cui had forfeited her right to seek reopening before the IJ, as well as her right to appeal to the BIA. The panel explained that, because in absentia orders may not be appealed to the BIA without first filing a motion to reopen before the IJ within 180 days, if the petitioner does not timely file such a motion before the IJ, the order becomes final at the end of the 180-day period.
The panel rejected Cui‘s arguments that the IJ‘s in absentia removal order was not final and that her proceedings were still pending. First, Cui argued that she timely filed her 2014 motion to reopen, such that the case was still pending before the IJ. Rejecting this argument, the panel explained that substantial evidence supported the conclusion that the motion was rejected and not filed. Second, Cui argued that she timely appealed the IJ‘s order, and the BIA remanded the decision, such that the case was pending before the IJ. The panel rejected that contention, explaining that the BIA made no decision on appeal and explicitly “returned“—rather than “remanded“—the record to the IJ, that the IJ‘s in absentia order was final, and that the improper appeal did not toll the 180-day deadline.
The panel also concluded that the BIA did not abuse its discretion in denying Cui‘s 2016 motion to reopen, explaining that the motion was untimely and did not articulate exceptional circumstances. The panel further concluded that the BIA did not abuse its discretion in declining to equitably toll the 180-day deadline where Cui did not allege any claims of fraud or deceit. The panel also concluded that the BIA did not rely on an incorrect legal premise in declining to sua sponte reopen, observing that, although Cui claimed prima facie eligibility for adjustment of status, the BIA is entitled to deny a motion where, as here, the ultimate relief sought is discretionary. Finally, the panel noted that, while Cui is arguably a victim of ineffective assistance of counsel, she failed to raise any such claim and continued to retain her arguably ineffective counsel before this court on appeal.
Concurring in part and dissenting in part, Judge Paez concurred in the majority‘s denial of the petition as to Cui‘s 2016 motion to reopen, but disagreed with the determination that the BIA did not abuse its discretion by refusing to rule on the 2014 motion. Judge Paez wrote that the BIA erroneously determined that the motion was not timely filed in the immigration court, explaining that there was no legal basis for an immigration court clerk to reject a timely motion to reopen as having been filed in the wrong court. Judge Paez wrote that the clerk prevented Cui from vindicating her statutory right to move to reopen her in absentia order, and the BIA placed her in an impossible bureaucratic Catch-22 and then faulted her for failing to find a way out. Judge Paez also concluded that the BIA erred by denying sua sponte reopening because that decision was tainted by its incorrect determination that Cui failed to timely move to reopen her in absentia order. Judge Paez would grant the petition and remand for consideration of Cui‘s 2014 motion.
COUNSEL
Shun C. Chen (argued), Law Offices of Shun C. Chen APLC, Irvine, California, for Petitioner.
Erik R. Quick (argued), Trial Attorney; Kiley Kane, Senior Litigation Counsel; Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C.; for Respondent.
OPINION
VANDYKE, Circuit Judge:
Yuzi Cui petitions for review of the Board of Immigration Appeals’ (BIA) dismissal of her appeal of the Immigration Judge‘s (IJ) discretionary denial of her 2016 motion to reopen her 2014 removal proceedings.
Cui is a Chinese citizen who overstayed her work visa and applied for asylum. During the pendency of her immigration proceeding in 2014, Cui was arrested while out of state and neither she nor her counsel attended her merits hearing before the IJ. On March 4, 2014, the IJ ordered her removed in absentia. Although Cui engaged a second lawyer, that lawyer‘s first act was to incorrectly file an appeal to the BIA of the in absentia order. In July 2014, Cui‘s counsel attempted to file a motion to reopen before the IJ, but the immigration court clerk rejected and did not file the motion to reopen because of the pending appeal and because another attorney was counsel of record in the immigration court. Cui‘s counsel did not attempt to rectify his errors or refile the motion to reopen within the statutorily allotted 180 days to challenge an in absentia order.
Although procedurally complicated, Cui‘s claims boil down to whether the BIA was required to look to the unfiled 2014 motion to reopen while considering the untimely 2016 motion to reopen. The record demonstrates that Cui‘s 2014 motion was never filed, and published en banc BIA precedent long predating this case dictates that the case progression here did not toll the 180-day deadline to file a motion to reopen. Thus, the BIA neither abused its discretion in determining that Cui‘s 2016 motion was untimely nor legally erred by declining to sua sponte reopen her case.
I. FACTUAL AND PROCEDURAL BACKGROUND
Cui first entered the United States on a work-related B-1 visa in November 2011
On February 10, 2014, Cui was arrested in Tennessee and her travel documents were allegedly confiscated. On February 26, 2014, Cui‘s counsel filed a motion to continue the March merits hearing. But the IJ did not grant the motion to continue prior to the hearing. When neither Cui nor her counsel appeared at the merits hearing on March 4, 2014, the IJ ordered Cui removed in absentia. Cui‘s 180-day time limit to file a motion to reopen her proceedings to rescind the IJ‘s order began that day. See
Cui then engaged her current counsel, Mr. Chen, who filed an appearance with the BIA, and on April 1, 2014 improperly filed an immediate appeal of the IJ‘s in absentia removal order with the BIA. See
More than three months later, on July 30, 2014, Cui‘s counsel attempted to file before the IJ a motion to reopen the IJ‘s in absentia removal order, citing “changed circumstances” and explaining that Cui now had her travel documents and could attend a hearing—instead of explaining the statutorily required “exceptional circumstances” that prevented Cui (or her counsel) from appearing at the merits hearing. See
Then, before the BIA on October 3, 2014, Cui‘s counsel filed a motion to remand Cui‘s case to the immigration court. The BIA did not rule on the motion for over a year, and on October 16, 2015, the BIA returned (but did not “remand“) Cui‘s case to the immigration court, noting that a motion to reopen before the IJ was the appropriate route to seek reconsideration of an in absentia removal order in Cui‘s circumstances. See
More than two years after the first attempted motion to reopen, on November 4, 2016, Cui‘s counsel filed a second motion to reopen, stating Cui‘s “U.S. Citizen husband filed an I-130 petition . . . which was granted” by the U.S. Citizenship and Immigration Services, and Cui therefore “intends to file an adjustment of status.” On December 5, 2016, the IJ denied this motion to reopen the in absentia removal order on the grounds that the motion was filed “two years after the filing deadline” and because the motion also did not allege “exceptional circumstances” that caused Cui to miss her original hearing. The IJ further denied sua sponte reopening, noting Cui did not merit an exercise of discretion because Cui‘s approved I-130 petition was granted “during her protracted unauthorized presence in the United States” and the IJ would not “credit [her] for after-acquired equities, thereby undermining the INA, circumventing the regulations, and rewarding [her] for disregarding the Court‘s order.”
B. BIA Motion to Reopen Decision
Cui appealed to the BIA, which dismissed the appeal. Cui then petitioned for review to this court, but this court granted the government‘s unopposed motion to remand back to the BIA because page 3 of the IJ‘s decision was not included in the Record of Proceeding. Upon reconsideration of the full IJ opinion, a majority of the BIA panel dismissed Cui‘s appeal.
The BIA addressed Cui‘s argument that the IJ erred in finding her 2014 motion to reopen was not filed and noted that because the “motion was not accepted for filing” it was “understandable that the [IJ] did not reference [the merits of the 2014 motion] in the decision under review.” The BIA also disagreed with Cui‘s claim that the BIA “implicitly granted tolling” of the 180-day deadline when it returned the record to the IJ in its October 2015 decision, because “the decision explicitly state[d] that the record [was] returned . . . without further action.” The BIA also concluded it would not equitably toll the deadline because Cui “has not offered any indication that deception, fraud, error, or ineffective assistance of counsel precluded her from timely filing her motion to reopen in the proper location.”
Lastly, the BIA determined that because the BIA had returned the record to the IJ after Cui‘s motion to remand, such action did not constitute a remand and the IJ‘s in absentia removal order was “in fact final,” citing the regulation that defined a final decision of the IJ as one for which the time to appeal has expired. The BIA thus affirmed the IJ‘s conclusion that the 2016 motion to reopen was untimely. The BIA also agreed with the IJ that Cui‘s 2016 motion to reopen did not allege exceptional circumstances and was properly denied “for this independent reason.” The BIA concluded that the IJ did not abuse its discretion in denying sua sponte reopening because Cui did “not identif[y] other equities besides potentially becoming eligible for relief during the time in which she resided in this country without legal status.”
II. STANDARD OF REVIEW
We have jurisdiction to review final removal orders under
III. MOTION TO REOPEN
A. The IJ‘s Removal Order was Final.
A removal order “become[s] final upon the earlier of (i) a determination by the [BIA] affirming such order; or (ii) the expiration of the period in which the alien is permitted to seek review of such order by the [BIA].”
In this case, the IJ‘s in absentia removal order became final on August 31, 2014—at the end of
Cui disagrees, arguing that the IJ‘s in absentia removal order was not final and that her removal proceeding is still pending. She advances two arguments for this proposition, suggesting that she either (a) timely and properly filed a motion to reopen on July 30, 2014, that is still pending adjudication by the IJ, or (b) timely appealed the IJ‘s in absentia removal order and the BIA remanded the decision such that it is currently pending review before the IJ. Because Cui never properly filed a motion to reopen her removal proceedings within the statutorily allotted 180 days from date of the removal order, and because the BIA‘s published en banc precedent dictates that returning the record in such a case involving an improper appeal does not toll the 180-day deadline, there are no proceedings pending before the IJ and Cui‘s removal order was final upon expiration of the 180 days after March 4, 2014.
i. The July 2014 motion to reopen was rejected by the filing clerk and not filed.
Whether a filing was rejected or accepted is a question of fact, and we
Importantly, Cui did not attempt to refile the July 2014 motion to reopen by the 180-day statutory deadline. Cui‘s counsel had (including the day the rejection notice
Cui‘s counsel‘s first mistake, filing an improper appeal, was not alone fatal. Once the immigration court rejected his filing, all he needed to do was withdraw Cui‘s improper appeal to the BIA, fix the problem with his EOIR-28 form, and refile with the immigration court within the fourteen days still left on Cui‘s 180-day clock. He never did that. In fact, he took no action on Cui‘s case—in the BIA or immigration court—until months later. Substantial evidence supports the BIA‘s conclusion that the July 2014 motion to reopen was properly rejected and never filed. Cui thus did not properly file a motion to reopen within the statutory timeline.5
ii. When the BIA “returned the record” to the IJ, it did not “remand” the case.
The statutory timeline to file a motion to reopen was also not extended by any procedural action taken by the BIA. As discussed, Cui initially filed an appeal with the BIA instead of filing a motion to reopen. After receiving the immigration court‘s rejection of the July 2014 motion to reopen filing, Cui‘s counsel months later on October 3, 2014, filed with the BIA a motion to remand the appeal back to the IJ (instead of simply withdrawing the appeal). In responding over a year later to Cui‘s motion to remand, the BIA did not grant the motion to remand, but instead explained why the appeal was procedurally incorrect and stated that “the record will be returned to the Immigration Court without further Board action.” Cui claims that this statement means the BIA remanded the case, and thus “[t]he legal status of the case is [still] pending” because the IJ was required to do something with the case after the “remand,” which it has never done.
The BIA‘s interpretation of the legal force given to a prior order is a legal determination we review de novo, see Lopez-Urenda v. Ashcroft, 345 F.3d 788, 791 (9th Cir. 2003), but with deference to the BIA‘s interpretation of the statutes governing its own jurisdiction, see Karingithi v. Whitaker, 913 F.3d 1158, 1161–62 (9th Cir. 2019) (adopting the BIA‘s interpretation of its “jurisdiction over [petitioner‘s] removal proceedings” because “[t]he BIA‘s interpretations of its regulations are due ‘substantial deference‘” (citation omitted)).
The BIA noted that Cui “fil[ed] an appeal with the [BIA], rather than [correctly] . . . filing a motion to reopen with the [IJ] in accordance with” statutory law, and thus the BIA “returned” the record rather than granting Cui‘s motion to remand. This language is identical to the language used in the BIA‘s en banc decision cited by the BIA in this case: In re Guzman-Arguera, 22 I. & N. Dec. 722 (BIA 1999). Under In re Guzman-Arguera, the BIA “is without authority to consider a direct appeal from an in absentia order,” and, in “return[ing] [the record] to the immigration court without further Board action,” id. at 723, the BIA declined to adopt the minority‘s suggested approach, refusing to “treat[] the appeal as a motion” or consider the petitioner‘s “removal from the United States . . . stayed” during the improper appeal to the BIA. Id. at 724 (Villageliu, J., concurring). In re Guzman-Arguera, which is now over two decades old, gives clear notice to any immigration practitioner that the 180-day timeline to file a motion to reopen before the IJ will not be tolled or stayed when a petitioner mistakenly files an appeal to the BIA instead of correctly filing a motion to reopen before the IJ. Id. at 723–24.
The BIA thus reasonably treated Cui‘s improper appeal as being withdrawn by Cui‘s motion to remand. When an appeal is withdrawn, “[i]f the record has been forwarded on appeal, . . . and, if no decision in the case has been made on the appeal, the record shall be returned and the initial decision shall be final to the same extent as if no appeal had been taken.”
B. The November 2016 Motion to Reopen was Untimely.
i. The 2016 Motion to Reopen was untimely and does not meet the requirements of § 1229a(b)(5)(C)(i) .
Cui filed a second motion to reopen on November 4, 2016. This motion was filed over two and a half years after Cui‘s March 4, 2014 removal order and was
The 2016 motion to reopen also did not articulate exceptional circumstances beyond Cui‘s control that caused her to miss her original merits hearing. See
ii. The BIA did not abuse its discretion in declining to equitably toll the 180-day deadline.
We review BIA decisions to deny equitable tolling of a motion to reopen for abuse of discretion. Lona v. Barr, 958 F.3d 1225, 1230–32 (9th Cir. 2020). “This court . . . recognize[s] equitable tolling of deadlines . . . on motions to reopen or reconsider [where] a petitioner [was] prevented from [timely] filing because of deception, fraud, or error, as long as the petitioner acts with due diligence in discovering the deception, fraud, or error.” Iturribarria v. INS, 321 F.3d 889, 897 (9th Cir. 2003). Cui‘s one-sentence 2016 motion to reopen does not allege any claims of fraud or deceit and simply asks to reopen the removal order so Cui may “file an adjustment of status with CIS.” The BIA therefore did not abuse its discretion in declining to equitably toll the 180-day deadline to file a motion to reopen where Cui failed to demonstrate due diligence in discovering any deception,
fraud, or error. See Luna v. Holder, 659 F.3d 753, 759 (9th Cir. 2011).
We may only exercise jurisdiction over BIA decisions denying sua sponte reopening “for the limited purpose of reviewing the reasoning behind the decisions for legal or constitutional error.” Bonilla v. Lynch, 840 F.3d 575, 588 (9th Cir. 2016). Although Cui claims that she demonstrated prima facie eligibility for adjustment of status, and it was legal error to deny sua sponte reopening, “where the ultimate grant of relief is discretionary, as it is in the case of suspension of deportation, the BIA may determine that the movant is not entitled to relief even though [s]he meets the threshold requirements for eligibility.” Sequeira-Solano v. INS, 104 F.3d 278, 279 (9th Cir. 1997). And in exercising its discretionary authority, the Court finds that the BIA did not “rel[y] on an incorrect legal premise” in declining to sua sponte reopen Cui‘s case. See Bonilla, 840 F.3d at 588 (internal quotation marks omitted).10
V. CONCLUSION
While one could argue that Cui is a victim of ineffective assistance of counsel, she failed to raise any such claim and continues to retain her arguably ineffective counsel before our court on appeal. Because we are limited to reviewing the arguments made in the briefs, we conclude both that the BIA did not abuse its discretion in determining Cui did not timely file a motion to reopen, and that the BIA did not commit legal error in declining to sua sponte reopen her removal proceedings.
PETITION DENIED.
PAEZ, Circuit Judge, concurring in part and dissenting in part:
I disagree with the majority‘s determination that the BIA did not abuse its discretion by refusing to rule on Cui‘s July 30, 2014 motion to reopen. In my view, the BIA erroneously determined that the motion was not timely filed in the immigration court. There was no legal basis for an immigration court clerk to reject Cui‘s timely motion to reopen as having been filed in the wrong court. In so doing, the clerk prevented Cui from vindicating her statutory right to move to reopen her in absentia order of removal. The BIA also erred by denying sua sponte reopening because that decision was tainted by its incorrect determination that Cui failed to timely move to reopen her in absentia order. I would grant the petition for review and remand for consideration of the merits of Cui‘s 2014 motion to reopen.1
I. The BIA abused its discretion in determining that Cui‘s July 30, 2014 motion to reopen was not timely.
An application for relief from removal may challenge an in absentia removal order by filing “a motion to reopen . . . within 180 days after the date of the order of removal if the [applicant] demonstrates that the failure to appear was because of exceptional circumstances.”
An IJ ordered Cui removed in absentia on March 4, 2014, so her 180-day window to file a motion to reopen with the IJ closed on August 31, 2014. Cui sought to comply with the statutory and BIA requirements by timely filing a motion to reopen with the IJ on July 30, 2014, articulating the exceptional circumstances that prevented her from appearing. The immigration court, however, rejected her motion because a court clerk determined that the immigration court was the “incorrect filing location.”2
The court clerk‘s rejection of the motion for this reason was wrong as a matter of law. The BIA majority noted as much when it returned Cui‘s April 2014 appeal of the IJ‘s in absentia order. It stated that the proper course of action was for Cui to file “a motion to reopen with the Immigration Judge in accordance with . . .
Indeed, the rationale for the Immigration Judge‘s rejection of the filing was questionable, since she relied mainly on a finding that the Board was the proper filing location in view of the respondent‘s appeal to us, but we subsequently remanded upon a determination that the proper forum for challenging the in absentia order was the Immigration Court.3
Rather than account for the immigration court clerk‘s error, the BIA sidestepped the issue, suggested the clerk‘s decision was unreviewable, and in so doing, placed Cui in an impossible bureaucratic Catch-22 and then faulted her for failing to find a way out. The BIA reasoned that Cui‘s July 30, 2014 motion to reopen was not accepted for filing due to the listing of a different attorney from the respondent‘s counsel of record and the pendency of the respondent‘s appeal before the Board. Thus, because this motion never became part of the record until the respondent presented it with her appeal, it is understandable that the Immigration Judge did not reference it in the decision under review.
In effect, the BIA asserted that because the immigration court rejected the motion to reopen for filing, it was not part of the record on appeal. The BIA‘s analysis ended there. The BIA did not state how the filing could be subject to appellate review. It did not address whether the immigration court clerk correctly rejected the filing. And the BIA provided no justification
The majority gives three reasons for finding the BIA‘s decision proper. None of them, however, have any support in law.
First, the majority posits that Cui‘s motion to reopen was deficient because it “did not explain what ‘extraordinary circumstances’ prevented Cui (or, more importantly, her attorney) from appearing at the merits hearing.” Maj. Op. 13 n.2. Cui‘s motion plainly provides an account of the circumstances that prevented her from appearing and her communication with her counsel prior to the scheduled hearing. Regardless, the question presented in this appeal is not about the merits of the motion, but whether the filing was lawfully rejected. Cui‘s filing was not rejected on this basis.
Second, the majority asserts that the immigration court‘s error in rejecting the filing for improper location was actually Cui‘s fault because, “as the court clerk noted, there was an (improper) appeal pending, so it was understandable” for the immigration court clerk to reject Cui‘s filing for lack of jurisdiction. Maj. Op. 14 n.4. There are several problems with the majority‘s reasoning. First, the majority relies on facts not in the record. There is no evidence that the “court clerk noted” that “there was an (improper) appeal pending.” Id. The only record evidence related to the rejection of Cui‘s filing appears on a form checklist. The form included a checkbox marked next to the following entry:
Incorrect Filing Location (Case at BIA) – This Immigration Court is not, at this time, the correct filing location. Our records indicate that the Board of Immigration Appeals is the correct filing location.
Contrary to the majority‘s representation, there is no language in the form checklist or anywhere in the record indicating that the immigration court clerk determined that “there was an (improper) appeal pending” or that the IJ had been divested of jurisdiction. Maj. Op. 14 n.4. Indeed, the form checklist was a document with no binding legal force. In particular, the “Incorrect Filing Location” entry that was marked lacks reference to any source of authority justifying the rejection on that basis. Notably, the “Incorrect Filing Location” reason for rejection does not even include a citation to the nonbinding Immigration Court Practice Manual (as most of the other entries on the form checklist do). But even if the checklist entry did include a citation to the Immigration Court Practice Manual, the checklist entry still could not stand for the proposition that the court clerk determined the court had been divested of jurisdiction, as the majority opinion implies, because there is no legal basis for an immigration court clerk to make determinations affecting the immigration court‘s jurisdiction. Dep‘t of Justice, Immigration Court Practice Manual, § 1.1(c) (2020), https://www.justice.gov/eoir/page/file/1258536/download (“The manual does not extend or limit the jurisdiction of the Immigration Courts as established by law and regulation.“).
Instead, the BIA accepted the fact of the rejected filing without any analysis, insulating the court clerk‘s rejection of Cui‘s filing from any review. However, neither the majority nor the BIA cite any legal basis for the court clerk‘s authority to make a legally wrong, yet unreviewable decision to refuse to file Cui‘s motion. There is simply no support for the BIA‘s view that an unnamed, unidentified immigration court clerk had unchecked authority to reject any filing for any reason, and in turn, to restrict Cui‘s ability to access the immigration court‘s lawful jurisdiction over her removal proceedings.
Third, and finally, the majority faults Cui because she “did not attempt to refile the July 2014 motion to reopen by the 180-day statutory deadline.” Maj. Op. 134. This appears to be a point about exhaustion of administrative remedies, although the majority provides no authority to explain its reasoning and, again, there is no basis for the majority to invoke this justification because the BIA did not rely on this reasoning. Navas, 217 F.3d at 658 n.16. Moreover, there is no indication that re-filing would have changed anything here. Although Cui could have rectified the first technical reason for rejecting her motion through refiling—the need for a motion to substitute counsel—there is nothing Cui could have done to overcome the clerk‘s erroneous determination that the immigration court was the “incorrect filing location.” “It is axiomatic that one need not exhaust administrative remedies that would be futile or impossible to exhaust.” Singh v. Ashcroft, 362 F.3d 1164, 1169 (9th Cir. 2004).
Thus, by locking Cui into a bureaucratic Catch-22 and then faulting her for failing to escape, the BIA abused its discretion. Its decision was “arbitrary, irrational,” and “contrary to law.” Azanor v. Ashcroft, 364 F.3d 1013, 1018 (9th Cir. 2004) (citation omitted). The BIA‘s unreasoned stamp of approval on the immigration court‘s improper rejection of Cui‘s motion to reopen is inconsistent with statutory and regulatory provisions, and its own precedent, see
II. Considering the BIA‘s erroneous determination that Cui‘s July 30, 2014 motion was untimely, its reasoning for rejecting her motion for sua sponte reopening was legal error.
This court may only exercise jurisdiction over BIA decisions denying sua sponte
The BIA observed that the sole basis for sua sponte reopening was that “the visa petition of [Cui‘s] husband was approved over 2 years after she was ordered removed.” The BIA reasoned that in light of “these circumstances and the lack of any showing that the respondent was prevented from properly filing a motion to reopen within the required time frame, we uphold the ruling that the respondent has not shown that sua sponte reopening is warranted.” In support of its decision, the BIA cited INS v. Rios-Pineda, 471 U.S. 444, 450-51 (1985) for the proposition that “equities obtained after the entry of a final deportation order do not create substantial equities,” and Matter of G-D-, 22 I. & N. Dec. 1132, 1133-34 (BIA 1999) for the proposition that sua sponte reopening is “reserved for truly exceptional situations.”
However, because the BIA‘s legal analysis was predicated on its erroneous conclusion that Cui‘s July 30, 2014 motion to reopen her in absentia order of removal was untimely, the BIA‘s reasoning was legally erroneous.
First, because Cui‘s July 30, 2014 motion to reopen was, in fact, timely filed, and has yet to be adjudicated by an IJ, her in absentia order of removal is not final. See
Second, the BIA incorrectly assumed that Cui failed to “properly fil[e] a motion to reopen within the required time frame,” and thus had not shown her situation was a “truly exceptional situation[]” under Matter of G-D-.
Thus, the BIA‘s legal reasoning for denying sua sponte reopening was predicated on its mistaken determination that Cui‘s July 30, 2014 motion to reopen was not properly filed. The BIA‘s legal reasoning does not hold up when its mistake is corrected. The BIA legally erred in denying sua sponte reopening.
* * *
In my view, the BIA abused its discretion by refusing to rule on Cui‘s July 30, 2014 motion to reopen because it erroneously determined that the motion was not timely filed in the immigration court. The BIA further erred by denying sua sponte reopening because its decision was tainted by its reliance on that incorrect determination. Therefore, I would grant the petition and remand for a merits determination of Cui‘s 2014 motion to reopen.