Bonilla v. Lynch

• Citation: 840 F.3d 575
• Decision Date: 12 July 2016
• Docket Number: No. 12-73853,12-73853
• Parties: Macario Jesus Bonilla, Petitioner, v. Loretta E. Lynch, Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

840 F.3d 575

Macario Jesus Bonilla, Petitioner,

v.Loretta E. Lynch, Attorney General, Respondent.

No. 12-73853

United States Court of Appeals, Ninth Circuit.

Argued and Submitted February 12, 2016 Pasadena, California

Filed July 12, 2016

Amended October 20, 2016

Stacy Tolchin (argued), Law Offices of Stacy Tolchin, Los Angeles, California, for Petitioner.

Aric A. Anderson (argued), Trial Attorney; Emily Ann Radford, Assistant Director; Stuart F. Delery, Assistant Attorney General; United States Department of Justice, Civil Division, Office of Immigration Litigation, Washington, D.C.; for Respondent.

Before: Marsha S. Berzon and John B. Owens, Circuit Judges and Algenon L. Marbley,^** District Judge.

ORDER

The opinion filed on July 12, 2016, and reported at 828 F.3d 1052

is hereby amended. The superseding amended opinion will be filed concurrently with this order.

The Petition for Panel Rehearing is DENIED . No further petitions for rehearing or petitions for rehearing en banc will be entertained.

OPINION

BERZON

, Circuit Judge:

Immigration law changes over time. New statutes are enacted; agency interpretations change; new appellate and Supreme Court decisions issue. Our questions concern how those legal changes affect an individual ordered deported from the United States when, as it turns out, the law concerning the grounds for deportation, or for denial of relief from deportation, changes after the individual is ordered deported.

Here, Macario Jesus Bonilla, formerly a lawful permanent resident of the United States, was deported to El Salvador in 1996 following a misdemeanor firearms conviction. He later reentered the United States without inspection and, much later, filed a motion to reopen, his second, on the ground that his original lawyer did not properly advise him how to adjust his status after he married a United States citizen. The motion was untimely, but Bonilla argued he was entitled to equitable tolling of the limitations period.

After the Supreme Court announced a change in law that placed in question the legality of the original deportation, Bonilla supplemented his motion to reopen. The supplement asked the Board of Immigration Appeals (“BIA” or “Board”) to exercise its sua sponte authority to reopen his deportation order to permit him to file for relief from deportation. The Board denied both Bonilla's motion and his request for sua sponte reopening. Bonilla now petitions for review.

We conclude that Bonilla was not entitled to equitable tolling and so deny review as to the adjustment of status issue. But, in agreement with every circuit that has squarely addressed the issue, we hold that we have authority to review refusals to reopen sua sponte to the limited degree that the refusal was based on legal error. Because we conclude the Board's decision in this case was based on a legally erroneous premise, we grant the petition for review, vacate the Board's denial, and remand to the Board to exercise its broad discretionary authority as to sua sponte reopening against the correct legal backdrop.

I. BACKGROUND

Macario Jesus Bonilla is a native and citizen of El Salvador. He entered the United States in 1981 and became a lawful permanent resident in 1989.

In 1994, Bonilla was convicted of misdemeanor possession of a concealed firearm in a motor vehicle and placed in deportation proceedings. An Immigration Judge (“IJ”) concluded that because Bonilla had been a lawful permanent resident for fewer than seven years and had been convicted of a firearms offense, he was ineligible for any form of relief under the Immigration and Nationality Act of 1950 (“INA”), including a waiver of inadmissibility under former § 212(c).¹ The IJ therefore ordered him deported.

Bonilla appealed the decision to the BIA, pro se. In October 1995, the Board affirmed, on the ground that the reason for Bonilla's deportation—his firearms conviction—precluded his eligibility for § 212(c) relief. The BIA did not address the IJ's determination that Bonilla was also ineligible for relief under § 212(c) because he had held lawful permanent residence for fewer than seven years.²

Bonilla married Ana Lilian Bonilla, a United States citizen, in February 1996. At the time of the marriage, the couple had an infant son, Jessie, also a United States citizen. After the marriage, a notario advised Bonilla to surrender himself and present his marriage certificate to immigration officials. Bonilla did so, and was taken to the San Pedro Detention Center.

While Bonilla was detained, his father and Ana met with and retained Manuel Rivera, an immigration attorney, who assured them he could get Bonilla out of detention and stop his deportation. Ana asked Rivera if there were any forms she or Bonilla should file; Rivera said no. On March 12, 1996, Rivera filed with the Board a motion to reopen for adjustment of status and a request for stay of deportation. He also filed an application for a stay of deportation with the Immigration and Naturalization Service (“INS”).

The Board and INS denied the stay requests, and Bonilla was deported to El Salvador. Rivera then told Ana there was nothing more he could do. He never sent Bonilla or Ana any copies of the documents he filed or received on Bonilla's behalf.

Shortly thereafter, the Board denied Bonilla's motion to reopen for adjustment of status. To have his status adjusted, the Board explained, Bonilla had to (1) make an application for adjustment of status; (2) have an immigrant visa immediately available to him at the time of filing his application; and (3) be eligible to receive a visa and be admissible for permanent residence. Bonilla never filed an application for adjustment of status (Form I–485), and an immigrant visa petition (Form I–130) was never filed on his behalf. As there was no indication in the record that Bonilla could have had an immigrant visa immediately available to him, the Board denied the motion to reopen.

Bonilla and Ana then retained another immigration attorney, Philip Abramowitz. Abramowitz advised Ana to file an immigrant visa petition on Bonilla's behalf. She did so on October 30, 1996; the petition was approved on June 2, 1997. During the course of his representation, Abramowitz never told Bonilla that the Board had denied his motion to reopen in May 1996, nor that Rivera should have filed an immigrant visa petition and an application for adjustment of status.

In May 1999, while in El Salvador, Bonilla was shot by gang members. Soon after, he fled the country and reentered the United States without inspection.

In 2002, Bonilla consulted a pro bono attorney at an immigration workshop. He explained his case and showed her all of the case-related documents he had. The attorney told Bonilla there was nothing she could do to help him. He “had[ ] to wait a few years before [he] could seek legal assistance to fix [his] immigration case,” she said.

Bonilla then waited six years to seek further legal assistance. In 2008, Bonilla and Ana met with Eddie Bonilla (no relation) at Servicio Latino Legal Offices. Eddie Bonilla claimed to be a licensed immigration attorney but, it turned out, was not—he was a notary unlawfully practicing law. Eddie Bonilla reviewed Bonilla's documents and told Bonilla he had to wait another year before taking any action. In 2009, Bonilla returned and retained Eddie Bonilla to represent him. Eddie Bonilla filed with the Board a pro se motion to reopen or reconsider the denial of appeal. The motion was denied.

Still pursuing her husband's case, Ana consulted with Stacy Tolchin, Bonilla's current attorney, in the fall of 2011. Unlike the lawyers and faux lawyer consulted earlier, Tolchin obtained Bonilla's immigration files from this court, and informed Bonilla and Ana that the Board had denied Bonilla's first motion to reopen back in May 1996. She also advised them that an immigrant visa petition should have been filed before filing the motion to reopen, which Rivera had not told them.

On December 1, 2011, Tolchin filed a motion to reopen Bonilla's 1995 deportation order based on ineffective assistance of counsel. Shortly thereafter, the Supreme Court decided Judulang v. Holder , 565 U.S. ––––, 132 S.Ct. 476, 181 L.Ed.2d 449 (2011)

. Judulang disapproved a BIA practice concerning the granting of § 212(c) relief.³ Invoking the change of law announced in Judulang, Tolchin filed on Bonilla's behalf a supplement to his motion to reopen, asking the Board to exercise its sua sponte jurisdiction and reopen his deportation order so that he could apply for § 212(c) relief under Judulang.

The Board denied Bonilla's motion to reopen for adjustment of status. It held that equitable tolling of the filing period was not merited, as Bonilla did not demonstrate either due diligence or prejudice. In addition, the Board declined to exercise its sua sponte authority to reopen the deportation proceedings. Bonilla timely filed a petition for review.

II. JURISDICTION AND STANDARD OF REVIEW

We have jurisdiction under 8 U.S.C. § 1252

to review the Board's denial of Bonilla's motion to reopen for adjustment of status. See

Avagyan v. Holder , 646 F.3d 672, 674 (9th Cir. 2011). We review the Board's denial of a motion to reopen for abuse of discretion, but review purely legal questions de novo. See

Iturribarria v. INS , 321 F.3d 889, 894 (9th Cir. 2003). “The BIA abuses its discretion when its decision is arbitrary, irrational, or contrary to law.” Avagyan , 646 F.3d at 678 (citation and internal quotation marks omitted).

The Supreme Court recently left open the question “whether federal courts may review the Board's decision not to reopen removal proceedings sua sponte .” Kucana v. Holder , 558 U.S. 233, 251 n.18, 130 S.Ct. 827, 175 L.Ed.2d 694 (2010)

. Before Kucana, we had held that, generally, we lack jurisdiction to review denials of sua sponte reopening. See

Ekimian v. INS , 303 F.3d 1153, 1159 (9th Cir. 2002). But we have not specifically addressed whether we have jurisdiction to review the Board's...