Lona v. Barr

• Decision Date: 15 May 2020
• Docket Number: No. 17-70329,17-70329
• Parties: Elizabeth LONA, AKA Lisa Elizabeth Lona, AKA Lisa Luna, AKA Chata Monkiker, Petitioner, v. William P. BARR, Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

958 F.3d 1225

Elizabeth LONA, AKA Lisa Elizabeth Lona, AKA Lisa Luna, AKA Chata Monkiker, Petitioner,

v.William P. BARR, Attorney General, Respondent.

No. 17-70329

United States Court of Appeals, Ninth Circuit.

Argued and Submitted December 5, 2019 San Francisco, California

Filed May 15, 2020

Ana F. Barhoum (argued), Olmos & Barhoum LLP, San Jose, California; Jennie I. Medina (argued), Mira Law Group A.P.C., San Leandro, California; Mei F. Chen, Canton, Georgia; for Petitioner.

Micah Engler (argued), Trial Attorney; Andrew N. O’Malley, Senior Litigation Counsel; Cindy S. Ferrier, Assistant Director; Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C.; for Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals, Agency No. AXXX-XX5-915

Before: Ronald M. Gould and Consuelo M. Callahan, Circuit Judges, and Stephen R. Bough,^* District Judge.

CALLAHAN, Circuit Judge:

Four years ago, in Bonilla v. Lynch , 840 F.3d 575 (9th Cir. 2016), we addressed how changes in immigration law "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." Id. at 578. We reaffirmed that the decision to grant or deny sua sponte relief in such circumstances is "committed to agency discretion by law and, therefore, unreviewable." Mejia-Hernandez v. Holder , 633 F.3d 818, 823 (9th Cir. 2011). At the same time, we held we have jurisdiction to review Board of Immigration Appeals (BIA) denials of sua sponte reconsideration or reopening for "legal or constitutional error." Bonilla , 840 F.3d at 588.

Bonilla remains settled law in the Ninth Circuit. BIA denials of sua sponte relief premised on legal or constitutional error remain the "one narrow exception" to our rule that the agency’s sua sponte authority is not subject to judicial review. Menendez-Gonzalez v. Barr , 929 F.3d 1113, 1116 (9th Cir. 2019). However, in Menendez-Gonzalez , we alluded to a potential expansion of Bonilla in cases where "petitioners ‘establish that the BIA has limited its discretion via a policy, rule, settled course of adjudication, or by some other method, such that the BIA’s discretion can be meaningfully reviewed for abuse.’ " Id. at 1117 (quoting Sang Goo Park v. Attorney Gen. , 846 F.3d 645, 653 (3d Cir. 2017) ).

The petitioner,¹ Elizabeth Lona, seeks to take advantage of this language, asking us to exercise our limited jurisdiction under Bonilla to reverse the BIA’s denial of reconsideration based on "a fundamental change in the law" that occurred two years after she was ordered removed, waived her appeal, and was removed to Mexico. She points to BIA precedent that such changes qualify as "exceptional situations" warranting sua sponte relief and cites similar cases where the BIA granted sua sponte reopening or reconsideration. She also argues the BIA should have excused her untimeliness by applying equitable tolling.

We hold that: (1) the BIA’s denial of equitable tolling was not unreasonable; (2) notwithstanding the BIA’s precedent regarding fundamental changes in the law, the BIA’s denial of sua sponte reconsideration here was not premised on legal or constitutional error; and (3) Lona’s "settled course" argument is barred by our general rule that we lack jurisdiction to review claims "that the BIA should have exercised its sua sponte power" in a given case. Ekimian v. INS , 303 F.3d 1153, 1159 (9th Cir. 2002). Accordingly, we deny the petition for review.

I

Elizabeth Lona is a native and citizen of Mexico. She entered the United States in 1974, the year she was born, and became a lawful permanent resident in 1989.

In 2009, Lona was convicted of petty theft and petty theft with priors in violation of California Penal Code sections 484 and 666. Two years later, she was convicted of second-degree burglary, in violation of California Penal Code section 459, and was placed in removal proceedings. Lona applied for asylum, withholding of removal, and protection under the Convention Against Torture (CAT), citing generalized fears of persecution and torture in Mexico due to her sexual orientation. An Immigration Judge ("IJ") denied these applications and summarily ordered Lona removed based on her aggravated felony conviction.² Lona moved to withdraw her right to appeal to the BIA, the IJ granted her motion, and in April 2013 she was removed to Mexico.

Over two and a half years later, Lona moved for reconsideration of her final removal order in light of Lopez-Valencia v. Lynch , 798 F.3d 863 (9th Cir. 2015), Rendon v. Holder , 764 F.3d 1077 (9th Cir. 2014), and Descamps v. United States , 570 U.S. 254, 133 S.Ct. 2276, 186 L.Ed.2d 438 (2013). First, she argued that these decisions fundamentally changed the law, invalidating the "aggravated felony" status of her convictions and, therefore, her basis for removal.³ Second, she argued that she was entitled to equitable tolling of the thirty-day timeline for seeking reconsideration because she filed her motion as soon as she discovered her eligibility for termination of removal proceedings.⁴ Third, she cited BIA precedent holding that "[a] significant development in the law constitutes an exceptional circumstance" warranting the agency’s exercise of its sua sponte authority to grant relief from removal. In re Vasquez-Muniz , 23 I. & N. Dec. 207, 207–08 (BIA 2002).

The Department of Homeland Security (DHS) opposed Lona’s motion, arguing that Descamps and Lopez-Valencia were not "fundamental changes in the law" and that, regardless, Lona failed to cite any authority that those cases "are to be applied retroactively after someone has already been removed on an Immigration Judge’s order of removal that was valid when it was executed." DHS noted that Lona had withdrawn her right to appeal from her initial order of removal and argued that no exceptions to untimeliness applied. The IJ agreed with DHS and summarily denied Lona’s motion.

Lona appealed the IJ’s decision to the BIA. Without expressly addressing Lona’s equitable tolling argument, the BIA affirmed the IJ’s denial of Lona’s motion to reconsider as "untimely" and noted that Lona "waived her appeal." The BIA noted that it "must be persuaded that the respondent’s situation is truly exceptional" before exercising its sua sponte authority to reconsider and concluded that Lona had not met her burden of persuasion:

[Lona] argues that ... Lopez-Valencia ... fundamentally changed the law, such that [her] conviction is no longer an aggravated felony. [She] had a full and fair opportunity to raise arguments similar to the ones accepted in Lopez-Valencia but failed to do so. She waived appeal from the Immigration Judge’s order of removal and was removed. Her case is final and does not warrant reconsideration.

Accordingly, the BIA dismissed Lona’s appeal.

Lona timely petitioned us to review the BIA’s decision.

II

We have jurisdiction under 8 U.S.C. § 1252. Mata v. Lynch , 576 U.S. 143, 135 S. Ct. 2150, 2154, 192 L.Ed.2d 225 (2015) ; Avagyan v. Holder , 646 F.3d 672, 674 (9th Cir. 2011). We generally review the denial of a motion to reconsider a final order of removal for an abuse of discretion, reversing when the denial is "arbitrary, irrational, or contrary to law." Go v. Holder , 744 F.3d 604, 609 (9th Cir. 2014) (citation omitted). Where, as here, the BIA denies reconsideration pursuant to its sua sponte authority under 8 C.F.R. § 1003.2(a), we review only for "legal or constitutional error." Bonilla , 840 F.3d at 588. If we find such error, we "remand to the BIA so it may exercise its authority against the correct ‘legal background.’ " Id. (quoting Pllumi v. Attorney Gen. , 642 F.3d 155, 160 (3d Cir. 2011) ).

III

A motion to reconsider a final order of removal generally must be filed within thirty days of the date of entry of the order. 8 U.S.C. § 1229a(c)(6)(B). The BIA may equitably toll this statutory filing deadline, including in cases where the petitioner seeks excusal from untimeliness based on a change in the law that invalidates the original basis for removal. See Lugo-Resendez v. Lynch , 831 F.3d 337, 343–45 (5th Cir. 2016). When equitable tolling is unavailable, the BIA may, in its discretion, exercise its sua sponte authority to "reopen or reconsider on its own motion any case in which it has rendered a decision." 8 C.F.R. § 1003.2(a).

In order for an individual to obtain sua sponte relief under 8 C.F.R. § 1003.2(a), "the Board ‘must be persuaded that the respondent’s situation is truly exceptional.’ " Bonilla , 840 F.3d at 585 (quoting In re G –D –, 22 I. & N. Dec. 1132, 1134 (BIA 1999) ). The BIA has cautioned that its sua sponte authority "is not meant to cure filing defects or circumvent the regulations, where enforcing them might result in hardship." Id. (quoting In re J –J –, 21 I. & N. Dec. 976, 984 (BIA 1997) ). " ‘[A] fundamental change in the law’ that represents ‘a departure from established principles’ " qualifies as an exceptional circumstance for which " ‘sua sponte action by the Board is appropriate.’ " Id. (quoting In re G –D –, 22 I. & N. Dec. at 1135 ). "Importantly, however, the Board is not required —by regulation or its own decisions—to reopen proceedings sua sponte in exceptional situations." Id. (citing Ekimian , 303 F.3d at 1158 ).

Lona makes three arguments in support of her petition. First, she argues that the BIA erred in not addressing her entitlement to equitable tolling of the statutory deadline for seeking reconsideration because she filed her motion "as soon as practicable" after the Ninth Circuit’s decision in Lopez-Valencia , the timing of which was a circumstance "beyond her control." Second, she argues that the BIA committed "legal error" under Bonilla by misconstruing its sua sponte authority to reconsider a final order of removal based on a fundamental change in the law even where, as here, the...