Cui v. Garland
| Decision Date | 23 September 2021 |
| Docket Number | No. 18-72030,18-72030 |
| Citation | 13 F.4th 991 |
| Parties | Yuzi CUI, Petitioner, v. Merrick B. GARLAND, Attorney General, Respondent. |
| Court | U.S. Court of Appeals — Ninth Circuit |
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.
Before: Richard A. Paez and Lawrence VanDyke, Circuit Judges, and Sharon L. Gleason,* District 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. 8 U.S.C. § 1229a(b)(5)(C)(i). Over two years later in 2016, after the BIA returned Cui's case to the IJ for lack of jurisdiction to consider the erroneous appeal, Cui's counsel again filed a motion to reopen before the IJ. Both the IJ and the BIA dismissed this 2016 motion to reopen as untimely. Cui petitions for review of the BIA's dismissal.
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.
Cui first entered the United States on a work-related B-1 visa in November 2011 and returned to China without filing for asylum.1 She then returned to the U.S. on another B-1 visa in March 2012, and applied for asylum in July 2012. In October 2012, Cui received a Notice to Appear for overstaying her visa, and conceded removability. Cui's counsel of record at the time was personally served in December 2012 with notice of a hearing set for March 4, 2014.
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 8 U.S.C. § 1229a(b)(5)(C)(i).
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 8 U.S.C. § 1229a(b)(5)(C). The appeal argued that the prior attorney filed a motion to change venue (which does not appear in the record) due to Cui's relocation to Tennessee, and that the IJ improperly denied the motion to change venue and issued an order of removal.
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 8 U.S.C. § 1229a(b)(5)(C)(i), (e)(1). The immigration court clerk rejected, and did not file, the motion to reopen on August 19, 2014, because (a) the BIA appeal was still pending, so the court clerk presumably perceived the appeal to have divested the immigration court of jurisdiction over the case, and (b) Mr. Chen was not listed as counsel of record in the immigration court, and he had not filed the required motion to substitute as counsel in that court. Cui did not refile that motion to reopen after it was rejected, and the 180-day deadline to file such a motion ran on August 31, 2014. See 8 U.S.C. § 1229a(b)(5)(C)(i).
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 8 U.S.C. § 1229a(b)(5)(C). In its order, the BIA cited to In re Guzman-Arguera , 22 I. & N. Dec. 722 (BIA 1999), in which the BIA previously held en banc that it "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 majority opinion declined to incorporate the concurring judges’ recommendations to either "treat[ ] the appeal as a motion" or consider the petitioner's "removal from the United States ... stayed," id. at 724 (Villageliu, J., concurring).
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."
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."
We have jurisdiction to review final removal orders under 8 U.S.C. § 1252(a)(1) and to review the BIA's denial of a motion to reopen for abuse of discretion. Najmabadi v. Holder , 597 F.3d 983, 986 (9th Cir. 2010). "Motions for reopening of immigration proceedings are disfavored," and as such, "the Attorney General has ‘broad discretion’ to grant or deny such motions." INS v. Doherty , 502 U.S. 314, 323, 112 S.Ct. 719, 116 L.Ed.2d 823 (1992) (citation omitted). The BIA only abuses its discretion when the decision is "arbitrary, irrational or contrary to law." Azanor v. Ashcroft , 364 F.3d 1013, 1018 (9th Cir. 2004) (citation omitted).
8 U.S.C....
To continue reading
Request your trial
-
Perez-Camacho v. Garland
...failed to raise any argument challenging this ruling in his brief on appeal, the issue is deemed waived. See Cui v. Garland , 13 F.4th 991, 999 n.6 (9th Cir. 2021).3 In the alternative, the BIA held that even assuming Perez-Camacho's motion was timely filed and numerically authorized, it wa......
-
Perez-Camacho v. Garland
...failed to raise any argument challenging this ruling in his brief on appeal, the issue is deemed waived. See Cui v. Garland , 13 F.4th 991, 999 n.6 (9th Cir. 2021).3 In the alternative, the BIA held that even assuming Perez-Camacho's motion was timely filed and numerically authorized, it wa......
-
Arizmendi-Medina v. Garland
...decision as unreasonable under the circumstances, Maj. Op. at 16, but that is not the abuse of discretion standard we must apply. See Cui, 13 F.4th at 996. Even if judge reasonably would have made a different decision, that does not make the IJ's decision "arbitrary, irrational, or contrary......
- Perez-Camacho v. Garland