Berdiev v. Garland

• Decision Date: 21 September 2021
• Docket Number: Nos. 20-9542 & 20-9602,s. 20-9542 & 20-9602
• Citation: 13 F.4th 1125
• Parties: Tojiddin BERDIEV, Petitioner, v. Merrick B. GARLAND, United States Attorney General, Respondent.
• Court: U.S. Court of Appeals — Tenth Circuit

13 F.4th 1125

Tojiddin BERDIEV, Petitioner,

v.Merrick B. GARLAND, United States Attorney General, Respondent.

Nos. 20-9542 & 20-9602

United States Court of Appeals, Tenth Circuit.

FILED September 21, 2021

Andrew Bramante (Hans Meyer with him on the briefs), Meyer Law Office P.C., Denver, Colorado, for Petitioner.

Jessica R. Lesnau, Trial Attorney, Office of Immigration Litigation (Brian Boynton, Acting Assistant Attorney General, Civil Division; Anna E. Juarez, Senior Litigation Counsel, Office of Immigration Litigation; Jeffrey R. Meyer, Attorney, Office of Immigration Litigation, on the brief), United States Department of Justice, Washington, D.C., for Respondent.

Before BACHARACH, EBEL, and PHILLIPS, Circuit Judges.

EBEL, Circuit Judge.

Petitioner Tojiddin Berdiev has faced immigration removal proceedings since 2007. After more than a decade of petitions, motions, and appeals, the Board of Immigration Appeals denied Berdiev's untimely motion to reopen removal proceedings (Berdiev's second such motion), then denied Berdiev's motion to reconsider. Berdiev now petitions this Court for review of both decisions.

In each of its two orders, the Board held that (1) Berdiev was not entitled to equitable tolling of his untimely motion to reopen, and (2) exercise of the Board's sua sponte reopening authority was unwarranted. Berdiev argues that the Board abused its discretion in making the first determination and relied on an erroneous legal premise in making the second. On equitable tolling, we conclude that the Board did not abuse its discretion. On the exercise of the Board's sua sponte reopening authority, however, we conclude that the Board at least partly relied on a legally erroneous—and thus invalid—rationale, and we cannot determine whether the Board would have reached the same outcome independently based solely on valid reasons.

Accordingly, exercising jurisdiction under 8 U.S.C. § 1252(a), the Court grants Berdiev's petitions for review, vacates the Board's two orders solely as to the sua-sponte reopening decision, and remands to the Board to reconsider that decision in light of our opinion.

I. BACKGROUND

Berdiev, a Tajikistan citizen, first came to the United States in 2007 as a nonimmigrant student. Within months, however, Berdiev failed to maintain his student status and the Department of Homeland Security commenced removal proceedings against him. Berdiev attempted to avoid removal by claiming marriage to a U.S. citizen. The Immigration Judge ("IJ") continued the matter seven times to allow Berdiev to pursue the I-130 petition process, which would enable Berdiev to apply for permanent residence or adjustment of immigration status based on the marriage.

Eventually, however, Citizenship and Immigrations Services ("CIS") denied the I-130 petition (and a refiled petition) from Berdiev's wife attempting to establish his status as a spouse of a U.S. citizen, finding that she had failed to show that they had entered the marriage in good faith. Deeming any additional I-130 petitions futile, the IJ refused any further continuances and instead granted Berdiev's request for voluntary departure, giving Berdiev sixty days to leave the country voluntarily. At this point, five years had passed since Berdiev first became removable.

Berdiev, represented by the Bull & Davies law firm, appealed to the BIA. That appeal remained pending for twenty-seven months, during which time Berdiev's voluntary departure period was stayed. Ultimately, the BIA dismissed Berdiev's appeal and reinstated Berdiev's sixty-day voluntary departure period. The BIA mailed a copy of its decision to Berdiev's home address and a copy to Bull & Davies. Bull & Davies then mailed an additional copy to Berdiev's home address.

Unfortunately, Berdiev had moved residences during the twenty-seven months the appeal was pending. Both copies of the BIA decision sent to Berdiev's prior home address were returned as undeliverable. According to Berdiev, he did not receive notice of the BIA decision—and the sixty-day voluntary departure period—until six months later, when he contacted Bull & Davies for a status update. At this point, the voluntary departure period was long expired. Berdiev did not voluntarily depart.

Instead, Berdiev hired a new attorney, Youras Ziankovich, to file a motion to reopen his removal proceedings on the basis of ineffective assistance of counsel, claiming that Bull & Davies had erred by, among other things, failing to notify Berdiev of the voluntary departure period. Around this same time, Berdiev divorced his wife and remarried, again to a U.S. citizen. Berdiev again sought to adjust his immigration status based on his marriage, filing a new I-130 petition.

Three months later, the BIA denied Berdiev's motion to reopen, deeming it untimely. The BIA declined to address Berdiev's ineffective-assistance-of-counsel claim, finding that Berdiev had failed to comply with the BIA's procedural requirements for bringing such a claim. The BIA also declined to exercise its sua sponte authority to reopen removal proceedings, determining there had been no showing of exceptional circumstances. The Board mailed a copy of its decision to Berdiev.

Another three months after that, CIS approved Berdiev's pending I-130 petition, which would have made him eligible to adjust his immigration status were it not for the removal order. Berdiev took no action at this time.

Three years later, Berdiev, still residing in the United States, filed a second motion to reopen the removal proceeding. Now represented by present counsel, Berdiev again argued ineffective assistance of prior counsel, this time asserting deficient performance by Attorney Ziankovich (who filed Berdiev's first motion to reopen). Berdiev claimed that he had contacted Ziankovich for an update every two months for three years, but Ziankovich never told him of the BIA's denial of his motion. Berdiev requested relief from both his prior attorneys’ ineffective assistance, asking the BIA to apply equitable tolling to his untimely motions to reopen, and to reopen his case so he could pursue lawful status based on the granted I-130 petition. In the alternative, Berdiev asked the Board to exercise its sua sponte authority to reopen despite the untimeliness of his motion.

The BIA denied Berdiev's motion, ruling that Berdiev failed to demonstrate the due diligence required for equitable tolling because he failed to explain why he persisted in attempting to contact Ziankovich for three years before hiring a new attorney. The Board also noted that Berdiev was precluded from the relief he ultimately sought because he was statutorily barred from adjustment of status in light of his failure to depart voluntarily during the voluntary departure period. The Board thus denied Berdiev's motion to reopen and declined to reopen sua sponte. Berdiev petitioned this Court for review of the BIA's decision. (Appeal No. 20-9542.)

While Berdiev's petition for review was pending before this Court, he filed a motion to reconsider with the Board, arguing that he had demonstrated due diligence sufficient for equitable tolling and that he was not statutorily barred for failing to depart voluntarily. The BIA denied that motion as well, and Berdiev petitioned this Court for review of that decision too. (Appeal No. 20-9602.) This Court consolidated both petitions.

II. JURISDICTION

Our jurisdiction extends to a BIA decision denying a motion to reopen as untimely and rejecting a request for equitable tolling. Mata v. Lynch, 576 U.S. 143, 147–48, 135 S.Ct. 2150, 192 L.Ed.2d 225 (2015). In contrast, this Court generally lacks jurisdiction to review a BIA decision as to whether to reopen sua sponte, "because there are no standards by which to judge the agency's exercise of discretion." Jimenez v. Sessions, 893 F.3d 704, 708–09 (10th Cir. 2018) (quotation omitted). We may, however, remand where the BIA bases its discretionary decision on an incorrect legal premise. Reyes-Vargas v. Barr, 958 F.3d 1295, 1300 (10th Cir. 2020). Here, Berdiev argues that the BIA declined to reopen sua sponte because it erroneously deemed Berdiev ineligible for adjustment of status based on his failure to depart voluntarily. Berdiev's statutory eligibility presents a question of law subject to this Court's jurisdiction. See id.

III. STANDARD OF REVIEW

We review BIA decisions on motions to reopen and motions to reconsider for an abuse of discretion. Infanzon v. Ashcroft, 386 F.3d 1359, 1362 (10th Cir. 2004) ; Rodas-Orellana v. Holder, 780 F.3d 982, 990 (10th Cir. 2015). "The BIA abuses its discretion when its decision provides no rational explanation, inexplicably departs from established policies, is devoid of any reasoning, or contains only summary or conclusory statements." Qiu v. Sessions, 870 F.3d 1200, 1202 (10th Cir. 2017) (quotation omitted). "[C]ommitting a legal error or making a factual finding that is not supported by substantial record evidence is necessarily an abuse of discretion." Id. (quotation omitted). Motions to reopen are "plainly disfavored," and Berdiev bears a "heavy burden" to show the BIA abused its discretion. Maatougui v. Holder, 738 F.3d 1230, 1239 (10th Cir. 2013) (quotation omitted).

IV. DISCUSSION

The BIA denied Berdiev's second motion to reopen and motion to reconsider on the same two grounds: (1) Berdiev's motion to reopen was untimely and he was not entitled to equitable tolling because he failed to demonstrate due diligence, and (2) Berdiev was statutorily barred from adjustment of status due to his failure to depart within the voluntary departure period. Berdiev challenges each ground. We agree that Berdiev's motion to reopen based on equitable tolling is untimely and not entitled to equitable tolling. However, as to the adjustment of status issue, we conclude the BIA erred. Because that issue served as a basis for the Board's decision not to reopen sua sponte, and because it is unclear from the Board's orders whether it independently relied...