Alcarez-Rodriguez v. Garland

Docket Number21-411
Decision Date28 December 2023
PartiesFILIBERTO ALCAREZ-RODRIGUEZ, AKA ASHLEY RODRIGUEZ, Petitioner, v. MERRICK B. GARLAND, Attorney General, Respondent.
CourtU.S. Court of Appeals — Ninth Circuit

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FILIBERTO ALCAREZ-RODRIGUEZ, AKA ASHLEY RODRIGUEZ, Petitioner,
v.

MERRICK B. GARLAND, Attorney General, Respondent.

No. 21-411

United States Court of Appeals, Ninth Circuit

December 28, 2023


Submitted March 9, 2023 [*] Pasadena, California

On Petition for Review of an Order of the Board of Immigration Appeals Agency No. A098-571-281

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Mariana L. Hanna (argued), Law Offices of Mariana L. Hanna, San Diego, California, for Petitioner.

Aaron Nelson (argued) and Sarah L. Martin, Trial Attorneys; Corey L. Farrell; Gregory D. Mack, Senior Litigation Counsel; Brian M. Boynton, Principal Deputy Assistant Attorney General; United States Department of Justice, Civil Division, Office of Immigration Litigation, Washington, D.C.; for Respondent.

Before: Ronald Lee Gilman, [**] Danielle J. Forrest, and Holly A. Thomas, Circuit Judges.

SUMMARY[***]

Immigration

The panel granted Ashley Rodriguez's petition for review of the Board of Immigration Appeals' decision and order denying her motion to remand for the consideration of her application for asylum, withholding of removal, and protection under the Convention Against Torture, and remanded for the BIA to properly consider the merits of Rodriguez's motion.

After setting a deadline for Rodriguez to file her application for asylum and related relief, an Immigration Judge sua sponte rescheduled the hearing several times. When Rodriguez appeared for her hearing, her counsel requested additional time, and later requested an extension because he was having difficulty reaching Rodriguez. The IJ denied the motion, vacated the upcoming hearing date, and ordered Rodriguez's removal. Rodriguez challenged these decisions, and the BIA denied Rodriguez's motion to reopen, dismissed her appeal, and denied her motion to remand.

The panel held that in denying Rodriguez's motion to remand, the BIA abused its discretion by failing to address

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her arguments that she could establish prima facie eligibility for relief with evidence that was unavailable at the time of her filing deadline, namely evidence related to her criminal history and medical conditions that was unavailable to her during the relevant period because she was homeless and did not have access to her personal documents. The panel explained that both categories of evidence were highly relevant to whether she could establish prima facie eligibility for relief because of her status as an HIV-positive transgender woman and rape survivor. The panel remanded for the BIA to consider whether Rodriguez's evidence was material and not reasonably available to her at the time of the final filing deadline.

The panel held that the BIA also abused its discretion in failing to properly evaluate whether Rodriguez had established good cause for missing the filing deadline. First, the panel held that a good-cause standard governs the BIA's denial of a motion to remand to apply for asylum. The panel noted that traditionally the BIA would grant a motion to reopen or remand to apply for discretionary relief only if the noncitizen either: (1) was not afforded the right to apply for that relief at her former hearing, or (2) is seeking that relief based on circumstances that arose after the hearing. However, in Matter of R-C-R-, 28 I. &N. Dec. 74 (BIA 2020), the BIA recognized a good-cause exception to these limitations. Concluding that Matter of R-C-R-'s good-cause standard was consistent with principles of fairness and immigration judge discretion, the panel accorded it Skidmore deference.

Next, the panel concluded that the BIA's conclusory one-sentence dismissal of Rodriguez's personal circumstances as not amounting to good cause, with no further explanation, was insufficient. Because the BIA did

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not articulate the proper framework for determining whether she had good cause for missing the filing deadline, the panel remanded for the BIA to consider that issue in the first instance.

Concurring in the judgment, Judge Forrest agreed with the majority that this case must be remanded for the BIA to resolve Rodriguez's request to reopen under the proper legal standard, but she disagreed, in part, with the majority's view of that standard. In Judge Forrest's view there is no basis for applying a good-cause exception to excuse a petitioner's failure to timely file an application for discretionary relief, including asylum, in the context of reopening removal proceedings. Judge Forrest would remand for the BIA to consider whether Rodriguez's request satisfies the governing regulatory requirements.

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OPINION

GILMAN, CIRCUIT JUDGE

Ashley Rodriguez, a native and citizen of Mexico, petitions for review of the Board of Immigration Appeals's (BIA's) decision and order denying her motion to remand her removal proceedings to the Immigration Judge (IJ) for the consideration of her application for asylum, withholding of removal, and protection under the Convention Against Torture (CAT). Because the BIA did not adequately consider Rodriguez's arguments in support of her motion to remand, we GRANT the petition for review and REMAND the case to the agency to properly consider the merits of Rodriguez's motion.

I. BACKGROUND

On October 17, 2014, the Department of Homeland Security (DHS) served Rodriguez with a putative Notice to Appear (NTA) that did not specify the date or time of any subsequent removal hearings. The NTA alleged that Rodriguez (1) was not a citizen or national of the United States, (2) was a native and citizen of Mexico, (3) had entered the United States near Otay Mesa, California, on approximately September 27, 2010, and (4) had not been admitted or paroled after inspection by an immigration officer. Rodriguez was also charged as removable under 8 U.S.C. § 1182(a)(6)(A)(i) for being present in the United States without inspection or parole. DHS did not file the NTA with the immigration court until March 13, 2015, approximately five months after the NTA was served on Rodriguez.

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On March 27, 2015, the immigration court issued a notice stating that Rodriguez's first master calendar hearing was to take place two months later, on June 9, 2015. Rodriguez appeared at the hearing and, through counsel, admitted the first two factual allegations stated in the NTA. She denied, however, the remaining allegations and contested the removability charge.

Because Rodriguez's removability had not yet been established, and because DHS has the burden on this issue, the IJ rightly determined that "[a]ny request for asylum seems premature." The IJ then scheduled another master calendar hearing for eight months later, on February 3, 2016, and gave Rodriguez a deadline of November 3, 2015 to submit a written change to her initial pleading if she wished to do so. Rodriguez complied with the IJ's directions and, on November 3, 2015, she filed an amended pleading in which she conceded her removability.

At the February 3, 2016 hearing, the IJ scheduled yet another master calendar hearing for sixth months later, on August 17, 2016. Rodriguez's application for asylum, withholding of removal, and CAT protection was to be filed with the immigration court at that hearing.

But the August 2016 hearing never materialized. On July 8, 2016, the immigration court sua sponte rescheduled the hearing for March 1, 2017. The immigration court sua sponte rescheduled the hearing yet again on November 28, 2016, this time for May 24, 2017. And on May 4, 2017- three weeks before the already twice-rescheduled hearing was to take place-the immigration court sua sponte rescheduled Rodriguez's proceedings a third time, for December 13, 2017.

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At the December 13, 2017 hearing, the IJ asked Rodriguez's counsel whether counsel had prepared an application for relief. Counsel responded by requesting additional time to review Rodriguez's medical records. The IJ agreed to provide more time and also scheduled a hearing on the merits of Rodriguez's forthcoming applications for relief for November 6, 2018. Because Rodriguez's merits hearing would not take place for another 11 months, the deadline for her application for relief was set for September 6, 2018. The IJ told Rodriguez that if the application was not submitted by that date, Rodriguez "r[a]n the risk" of her application being denied.

On September 5, 2018, Rodriguez's counsel filed a motion to extend the filing deadline by 15 days because counsel had been having difficulty reaching Rodriguez. The IJ did not act on the motion until October 4, when he simultaneously denied the extension, vacated the November 6, 2018 hearing, and ordered Rodriguez's removal.

Rodriguez filed a motion to reopen with the immigration court on October 30, 2018. The motion set forth the reasons for Rodriguez's delay in filing her application and included supporting documentation. Rodriguez concurrently filed her completed application for humanitarian relief in the form of asylum, withholding of removal, and CAT protection, along with supporting evidence.

In addition to her motion to reopen with the immigration court, Rodriguez filed a notice of appeal with the BIA on November 2, 2018. She appealed based on the IJ's "err[or] in determining that [Rodriguez] had abandoned her relief applications for failure to timely file."

The BIA acknowledged receipt of Rodriguez's notice of appeal on November 9, 2018. It subsequently assumed

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jurisdiction over her motion to reopen. In response, Rodriguez filed an amended motion to remand (improperly styled as a motion to reopen) on December 26, 2018.

According to the motion, Rodriguez learned in 2015 that she had contracted HIV from her physically abusive former partner. She left that partner in approximately November 2017, just before the master calendar hearing during which the IJ set the September 2018 deadline for the filing of Rodriguez's application for relief. Because of her immigration status, Rodriguez was not authorized to...

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