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Immigration Reopening

February 23, 2022

California

,

United States of America

Issue

Is a subsequent marriage to a United States Citizen grounds to reopen the immigration case of a person who has an In Absentia Order of Removal?

Conclusion

An order for removal in absentia can only be rescinded if a motion to reopen is filed within 180 days of the date of the order of removal if the failure to appear was because of exceptional circumstances, or, upon a motion to reopen filed at any time if the alien did not receive notice of the removal proceedings. (In re Matter of Monges-Garcia, Benjamin-Stubbs v. U.S. Attorney Gen., In re: Marcos Aurelio CORDOVA-BONILLA, 8 U.S.C.§ 1229a, 8 C.F.R. § 1003.23)

The spouse of a US citizen is not prima facie eligible for an adjustment of status when their marriage occurred after the spouse was ordered removed. (Cui v. Garland)

The 180-day deadline for seeking reopening of removal proceedings after an in absentia order of removal based on exceptional circumstances is a non-jurisdictional claim processing rule and is subject to equitable tolling. Equitable tolling requires a litigant to show that they have been pursuing their rights diligently and that some extraordinary circumstance stood in their way. (Cui v. Garland, Benjamin-Stubbs v. U.S. Attorney Gen., In re Matter of Monges-Garcia)

Even though diligence is not required by statute, a respondent's lack of diligence can be a factor that undercuts the respondent's claim that they failed to appear at a scheduled immigration hearing due to exceptional circumstances. (In re: Marcos Aurelio CORDOVA-BONILLA, In re J-P-)

The Board of Immigration ("BIA") has the power to reopen immigration proceedings sua sponte. However, this power is not meant to be used as a general cure for filing defects or to otherwise circumvent the regulations where enforcing them might result in hardship. (In re J-J-, In re: Marcos Aurelio CORDOVA-BONILLA)

The decision to deny sua sponte reopening is within the BIA's discretionary authority and thus the BIA may determine that the movant is not entitled to relief even though they meet the threshold requirements for eligibility. (Cui v. Garland, In re Matter of Monges-Garcia)

If the BIA declines to reopen a respondent's immigration proceedings, the respondent is not precluded from requesting a stay of removal from the Department of Homeland Security, but they are required to first obtain consent to re-apply for admission from Citizenship and Immigration Services ("CIS"). (In re: Marcos Aurelio CORDOVA-BONILLA)

In Cui v. Garland, the petitioner was the subject of an in absentia removal order issued on March 4, 2014. The petitioner brought a motion to reopen over two and a half years after the removal order was issued. The petitioner's motion only requested that her removal proceedings be reopened because her U.S. citizen husband filed an I-130 Petition with CIS, which was granted, and the petitioner intended to file an adjustment of status. The United States Court of Appeals for the Ninth Circuit found that the motion to reopen was untimely and did not articulate exceptional circumstances beyond the petitioner's control that caused her to miss her original merits hearing, thus the BIA did not abuse its discretion in denying the second motion to reopen. The Court also found that the BIA did not abuse its discretion in declining to equitably toll the 180-day deadline to file a motion to reopen where the petitioner failed to demonstrate due diligence in discovering any deception, fraud, or error. Additionally, the Court found that the BIA did not commit legal error in exercising its discretionary authority and declining to sua sponte reopen the petitioner's removal proceedings.

Law

8 U.S.C.§ 1229a(b)(5)(C) provides that an order for removal in absentia can only be rescinded if a motion to reopen is filed within 180 days of the date of the order of removal if the failure to appear was because of exceptional circumstances, or, upon a motion to reopen filed at any time if the alien did not receive notice of the removal proceedings:

(C) Rescission of order

Such an order may be rescinded only-

(i) upon a motion to reopen filed within 180 days after the date of the order of removal if the alien demonstrates that the failure to appear was because of exceptional circumstances (as defined in subsection (e)(1)), or

(ii) upon a motion to reopen filed at any time if the alien demonstrates that the alien did not receive notice in accordance with paragraph (1) or (2) of section 1229(a) of this title or the alien demonstrates that the alien was in Federal or State custody and the failure to appear was through no fault of the alien.

The filing of the motion to reopen described in clause (i) or (ii) shall stay the removal of the alien pending disposition of the motion by the immigration judge.

The same requirements are reiterated in 8 C.F.R. § 1003.23(b)(4)(ii):

(ii) Order entered in absentia or removal proceedings. An order of removal entered in absentia or in removal proceedings pursuant to section 240(b)(5) of the Act may be rescinded only upon a motion to reopen filed within 180 days after the date of the order of removal, if the alien demonstrates that the failure to appear was because of exceptional circumstances as defined in section 240(e)(1) of the Act. An order entered in absentia pursuant to section 240(b)(5) may be rescinded upon a motion to reopen filed at any time if the alien demonstrates that he or she did not receive notice in accordance with sections 239(a)(1) or (2) of the Act, or the alien demonstrates that he or she was in Federal or state custody and the failure to appear was through no fault of the alien. However, in accordance with section 240(b)(5)(B) of the Act, no written notice of a change in time or place of proceeding shall be required if the alien has failed to provide the address required under section 239(a)(1)(F) of the Act. The filing of a motion under this paragraph shall stay the removal of the alien pending disposition of the motion by the Immigration Judge. An alien may file only one motion pursuant to this paragraph.

In Cui v. Garland, 13 F.4th 991 (9th Cir. 2021), the petitioner was the subject of an in absentia removal order issued on March 4, 2014. In this decision, the United States Court of Appeals for the Ninth Circuit considered the petitioner's second motion to reopen, which she filed over two and a half years after the removal order was issued. The petitioner's second motion only requested that her removal proceedings be reopened because her U.S. citizen husband filed an I-130 Petition with Citizenship and Immigration Services ("CIS"), which was granted, and the petitioner intended to file an adjustment of status with CIS. The Court found that the second motion to reopen was untimely and did not articulate exceptional circumstances beyond the petitioner's control that caused her to miss her original merits hearing, thus the Board of Immigration Appeals ("BIA") did not abuse its discretion in denying the second motion to reopen. The Court also found that the BIA did not abuse its discretion in declining to equitably toll the 180-day deadline to file a motion to reopen where the petitioner failed to demonstrate due diligence in discovering any deception, fraud, or error. Additionally, the Court found that the BIA did not commit legal error in exercising its discretionary authority and declining to sua sponte reopen the petitioner's removal proceedings (at 999-1001):

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

[13 F.4th 1000]

therefore untimely. 8 U.S.C. § 1229a(b)(5)(C)(i); 8 C.F.R. § 1003.23(b)(4)(ii).8 The BIA did not abuse its discretion in denying the untimely motion to reopen. Singh-Bhathal v. INS, 170 F.3d 943, 946 (9th Cir. 1999).

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 8 U.S.C. § 1229a(b)(5)(C)(i), (e)(1). Instead, the motion requested in a single line that Cui's removal proceedings be reopened because her "U.S. Citizen husband filed an I-130 Petition with CIS, which was granted, and [Cui] intends to file an adjustment of status with CIS." It never mentions either the IJ's March 2014 in absentia order or Cui's July 2014 motion rejected by the immigration court. Cui did not establish in her 2016 motion to reopen that "exceptional circumstances" caused her to miss her hearing, and the BIA was thus within its discretion to deny the motion even if it was timely—which it wasn't. Cf. Arredondo v. Lynch , 824 F.3d 801, 806–07 (9th Cir. 2016).9

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).

[13 F.4th 1001]

IV. DENIAL OF SUA SPONTE REOPENING

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.

In a footnote, the Court noted that the petitioner did not demonstrate she was prima facie eligible for adjustment at the time of her merits hearing because her marriage to a U.S. citizen occurred after her removal had been ordered (at FN 10):

10 In any event, Cui did not demonstrate she was prima facie eligible for adjustment at the time of her merits hearing, because her marriage to her U.S. citizen husband occurred after her removal had been ordered. Cf. Malilia v. Holder, 632 F.3d 598, 600–01 (9th Cir. 2011) (determining a petitioner had established prima facie eligibility "to apply for an adjustment of status had the continuance been granted" because "[w ]hile removal proceedings were pending, [petitioner] married ... a United States citizen, who immediately filed an I-130 Adjustment of Status Application on [petitioner's] behalf" (emphasis added)).

In In re Matter of Monges-Garcia, 25 I&N Dec. 246 (I & N 5/20/2010), 25 I&N Dec. 246 (B.I.A. 2010), the BIA dismissed the respondent's appeal from an immigration judge's denial of her motion to reopen. The respondent was ordered deported in absentia in 1994. In 2003, the respondent filed a motion to reopen her deportation proceedings seeking to apply for adjustment of status based on her marriage to a United States citizen. The BIA agreed with the immigration judge's determination that the respondent's motion to reopen was untimely and did not qualify for any of the permissible exceptions to the time limitations for motions to reopen. Thus, the BIA agreed with the immigration judge's conclusion that the respondent was precluded from reopening her immigration proceedings (at 247, 251, 253):

The respondent is a native and citizen of Honduras. The record reflects that she entered the United States without inspection on February 16, 1994, after which deportation proceedings were initiated against her with the issuance of an Order to Show Cause and Notice of Hearing (Form I-221). When the respondent failed to appear for her scheduled hearing on October 28, 1994, the Immigration Judge ordered her deported in absentia.

On April 7, 2003, the respondent filed a motion to reopen her deportation proceedings seeking to apply for adjustment of status based on her marriage to a United States citizen. In a decision dated April 28, 2003, the Immigration Judge denied the motion, finding that the respondent did not establish that her failure to appear resulted from a lack of notice or exceptional circumstances, as required by former section 242B(e)(1) of the Act, and that her motion was time barred under the regulations.

[...]

The respondent is subject to the current version of the regulation at 8 C.F.R. § 1003.23(b)(1), which required her to file her motion to reopen before the Immigration Judge by September 30, 1996, because her in absentia deportation order was issued on October 28, 1994.5 Her motion to reopen was not submitted until April 7, 2003. It was therefore untimely filed and was properly denied by the Immigration Judge.

[...]

The respondent's motion to reopen the proceedings to apply for adjustment of status was filed on April 7, 2003, well after the regulatory deadlines for seeking reopening of the Immigration Judge's 1994 in absentia deportation order. Furthermore, the motion does not qualify for any of the permissible exceptions to the time limitations for motions to reopen. We therefore agree with the Immigration Judge that the respondent is precluded from reopening her immigration proceedings pursuant to 8 C.F.R. § 1003.23(b)(1). Accordingly, the respondent's appeal from the Immigration Judge's denial of her motion to reopen will once again be dismissed.

In two footnotes, the BIA noted exceptions to the strict limitations on motions to reopen (at FN 6 -7):

6. Other provisions in the scheme included section 242B(c)(1) of the Act, which provides that if an alien fails to appear for a hearing after the required written notice has been provided and the Government establishes by clear, unequivocal, and convincing evidence that notice was provided and that the alien is deportable, the Immigration Judge must order the alien deported in absentia. Such an in absentia deportation order may be rescinded upon a motion to reopen filed within 180 days after the date of the order of deportation if the alien demonstrates that the failure to appear was because of "exceptional circumstances" as defined in section 242B(f)(2). Section 242B(c)(3)(A) of the Act; see also 8 C.F.R. § 1003.23(b)(4)(iii)(A)(1). However, an in absentia deportation order may also be rescinded upon a motion to reopen filed at any time if the alien demonstrates that she did not receive the required notice or was in Federal or State custody and the failure to appear was through no fault of the alien. Section 242B(c)(3)(B) of the Act; see also 8 C.F.R. § 1003.23(b)(4)(iii)(A)(2). Similar provisions regarding removal proceedings were enacted by Congress in the IIRIRA in 1996. See supra note 1.

7. We note that there are some exceptions to the strict limitations on motions to reopen in the regulations. For example, the time and numerical limitations may not apply to motions to reopen that are filed by: (1) aliens who seek to rescind an in absentia order by a showing of lack of notice or "exceptional circumstances"; (2) aliens seeking asylum or withholding of deportation based on changed country conditions; (3) an alien and the Department of Homeland Security jointly; and (4) the Department of Homeland Security when the basis of the motion is fraud in the original proceeding or a crime that would support termination of asylum. See 8 C.F.R. §§ 1003.23(b)(1), (4); see also 8 C.F.R. § 1003.2(c)(3) (2010) (relating to motions before the Board). Furthermore, the Board may at any time reopen or reconsider on its own motion any case in which it has rendered a decision. See 8 C.F.R. § 1003.2(a); see also Matter of G-D-, 22 I&N Dec. at 1133-34; Matter of J-J-, 21 I&N Dec. at 984. In the context of removal proceedings, the statute also contains similar exceptions relating to motions to reopen seeking asylum and rescission of an in absentia order of removal and, in addition, provides an exception for motions filed by aliens under the special rule for battered spouses, children, and parents. See sections 240(c)(7)(C)(ii)-(iv) of the Act.

In In re J-J-, 21 I&N Dec. 976, 1997 WL 434418 (B.I.A. 1997), the BIA explained that its power to reopen immigration proceedings on its own motion (sua sponte) is not meant to be used as a general cure for filing defects or to otherwise circumvent the regulations where enforcing them might result in hardship (at 984):

Notwithstanding the statutorily mandated restrictions, the Board retains limited discretionary powers under the regulations to reopen or reconsider cases on our own motion. 8 C.F.R. § 3.2(a). That power, however, allows the Board to reopen proceedings sua sponte in exceptional situations not present here. The power to reopen on our own motion is not meant to be used as a general cure for filing defects or to otherwise circumvent the regulations, where enforcing them might result in hardship. When Congress passes laws, and agencies promulgate rules as directed by those laws, these acts are meant to have real and substantial effect. Stone v. INS, supra. That is the case with the Immigration Act of 1990, and the motions and appeals regulations promulgated pursuant to that Act in April 1996. These rules are meant to bring finality to immigration proceedings and to redress the problem of abuses resulting from the filing of successive or frivolous motions.

In the non-precedent decision of In re: Marcos Aurelio CORDOVA-BONILLA, 2017 Immig. Rptr. LEXIS 24736 (BIA September 29, 2017), the BIA dismissed the respondent's appeal of an immigration judge's decision denying his motion seeking reopening, administrative closure, and a stay of proceedings. The respondent was initially ordered removed from the United States in absentia on November 7, 2008. The respondent then filed a motion to reopen on March 20, 2017. The respondent did not address why he failed to appear at the 2008 hearing but instead asserted that he was now married to a United States citizen, that his spouse had filed a visa petition on his behalf that was still pending, and that she had been having significant health issues since January 2016, which precluded her from working and taking care of their two daughters. The BIA first noted that because the respondent did not file his motion within 180 days after the issuance of his in absentia order of removal, his motion could not be considered on the basis of exceptional circumstances. The BIA agreed with the immigration judge that this case presented no exceptional situation that would call for sua sponte reopening of the respondent's proceedings and noted that the respondent did not diligently pursue his immigration status as he first filed his motion to reopen more than eight years after he was ordered removed in absentia (at 2-6):

In his motion, which he filed on March 20, 2017, the respondent conceded that he failed to appear for his November 7, 2008, hearing before an Immigration Judge at the Los Angeles Immigration Court, but did not submit an affidavit explaining the reason for such failure. Instead, he stated, through counsel, that he was now married to a United States citizen, that his spouse had filed a visa petition on his behalf that was still pending, and that she had been having significant health issues since January 2016, which precluded her from working and taking care of their two daughters. The respondent claimed that his wife's medical condition qualified as an exceptional circumstance which, coupled with his eligibility for relief and the evidence he had filed with the motion, justified sua sponte reopening of his proceedings. He also requested administrative closure in order to be able to file a Form I-601A seeking a provisional unlawful presence waiver. He also sought a stay of removal (Respondent's Motion at 1-9).

On appeal, the respondent argues that the Immigration Judge erred in denying his motion despite the lack of opposition by the DHS and in failing to consider the explanation [*3] his wife provided for his failure to appear for his November 7, 2008, hearing (Respondent's Notice of Appeal at 2). In his appeal brief and accompanying "declaration," the respondent corroborates his wife's explanation that he decided not to appear for his November 7, 2008, hearing out of fear of being ordered removed and his inability to afford an attorney. He also alleges that he did go to see an attorney who told him that his case was hopeless and that, regardless of whether he hired an attorney, he would be deported, which "scared [him] to death" (Respondent's Br. at 5-6 and Tab HH).

The respondent also argues on appeal that the Immigration Judge erred in characterizing his reasons for requesting reopening as "after acquired equities" (Respondent's Notice of Appeal at 2). Specifically, the respondent argues that even though he married his United States citizen wife in 2015, their first daughter was actually born in 2007, i.e., prior to the Immigration Judge's in absentia order, which shows that he and his wife were in a committed and loving relationship since before the entry of the order of removal (Respondent's Br. at 3). The respondent maintains that the crux or his [*4] request for reopening is not the simple fact of his marriage or the existence of his two United States citizen daughters, who rely on him for emotional and financial support, but the fact of his spouse's emergent medical condition and the resulting hardship that she and their daughters would suffer if he is removed from the United States (Id. at 3-4). The respondent further argues that he is statutorily eligible for a provisional waiver of inadmissibility but for his in absentia removal order and asks the Board to administratively close his proceedings and grant a stay of removal as he is facing imminent removal from the United States (Id. at 6-13).

We affirm the Immigration Judge's decision (IJ at 2-4) and find unpersuasive the respondent's appellate arguments. Initially, we note that because the respondent did not file his motion within 180 days after the issuance of his in absentia order of removal, his motion cannot be considered on the basis of exceptional circumstances. See section 240(b)(5)(C) of the Immigration and Nationality Act, 8 U.S.C. § 1229a(b)(5)(C)(2012) [*5]; 8 C.F.R. § 1003.23(b)(4)(ii). We are not unsympathetic to the respondent's desire to remain in the United States and the particular circumstances of this case, including the medical issues faced by his United States citizen wife and the impact that his removal will potentially have on her and their two United States citizen children. However, we nonetheless agree with the Immigration Judge that this case presents no exceptional situation which would call for sua sponte reopening of the respondent's proceedings (IJ at 2-3). See Matter of J-J-, 21 I&N Dec. 976, 984 (BIA 1997) (the power to reopen sua sponte is limited to exceptional circumstances and is not meant to cure filing defects or circumvent the regulations where enforcing them might result in hardship).

Sua sponte reopening of these proceedings is also not warranted because the respondent did not diligently pursue his immigration status as he first filed his motion to reopen more than eight years after he was ordered removed in absentia (IJ at 3). See Matter of J-P-, 22 I&N Dec. 33, 36 (BIA 1998) (recognizing that, even where the exercise of due diligence [*6] is not a statutory requirement for reopening an in absentia deportation order, an alien's lack of diligence may be a "factor that undercuts" the proffered explanation for the alien's failure to appear at a scheduled immigration hearing).

The BIA noted that if the respondent nonetheless believed that he should be permitted to remain in the United States, he was not precluded from requesting a stay of removal from the Department of Homeland Security. However, because the BIA declined to reopen the respondent's immigration proceedings, if the respondent were to seek a provisional unlawful presence waiver, he would be required to first obtain consent to re-apply for admission from the CIS (at 6):

If the respondent nonetheless believes that he should be permitted to remain in the United States, he is not precluded from requesting a stay of removal from the DHS. See 8 C.F.R. § 241.6. However, as we have declined to reopen these proceedings, if the respondent were to seek a provisional unlawful presence waiver, he would be required to first obtain consent to re-apply for admission from the United States Citizenship and Immigration Services (USCIS). See 8 C.F.R. § 212.7(e)(4)(iv) (stating that an alien who is subject to an in absentia order of removal may file a Form I-601A only after the USCIS has granted the alien's Application for Permission to Reapply for Admission into the United States After Deportation or Removal (Form I-212)).

No other Ninth Circuit decisions were identified that discussed a petitioner who had been ordered removed in absentia seeking to reopen their immigration case based on a subsequent marriage; however, an unpublished decision from the Eleventh Circuit may be instructive. In Benjamin-Stubbs v. U.S. Attorney Gen., 579 Fed. Appx. 854, 14-10993 (11th Cir. 2014), the United States Court of Appeals for the Eleventh Circuit denied the petitioner's appeal of the BIA's order affirming the immigration judge's denial of her motion to reopen. The Court explained that the petitioner failed to appear at her removal hearing in 1998 and an immigration judge ordered her removed in absentia. Thirteen years later, the petitioner filed a motion to reopen removal proceedings alleging that she received ineffective assistance of counsel and that she was not given notice of the hearing. The petitioner alleged that she only discovered the removal order when she filed for an adjustment of status based on her 2002 marriage to a United States citizen (at 2-3):

Benjamin-Stubbs entered the United States on July 18, 1992, at the age of 16, as a non-immigrant B-2 visitor with authorization to remain in the United States until January 17, 1993. After remaining beyond that date without authorization from the Department of Homeland Security (DHS), she was issued a Notice to Appear (NTA) charging that she was subject to removal for overstaying her visa. The NTA, along with a list of free legal service providers and an instruction to notify the DHS of any change of address, was sent by regular mail to her Laken Drive residence. On June 10, 1998, the immigration court continued her master calendar hearing to August 5, 1998 and had her lawyer, who had filed an appearance that day, personally served with a notice of the hearing. He was subsequently granted leave to withdraw after attempting, and failing, to make contact with Benjamin-Stubbs in connection with the hearing.

Page 3

Benjamin-Stubbs failed to appear at the master calendar hearing, and an immigration judge ordered her removed in absentia. A copy of the immigration judge's order was mailed to the Laken Drive residence.

Thirteen years later, Benjamin-Stubbs retained new counsel and attempted to rescind the removal order by filing a motion to reopen removal proceedings alleging that she received ineffective assistance of counsel and that she was not given notice of the master calendar hearing. In support, Benjamin-Stubbs stated that an unnamed representative of a free legal service provider advised her not to attend the master calendar hearing because the matter would be adjourned. She only discovered the removal order when she filed for an adjustment of status based on her 2002 marriage to a United States citizen.

The Court explained that the 180-day deadline for seeking reopening of removal proceedings after an in absentia order of removal based on exceptional circumstances is a non-jurisdictional, claim-processing rule and is

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