Kong v. Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: November 1, 2024
• Docket: 22-1981
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS NOV 1 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

CHANTHA KONG, No. 22-1981 Agency No. Petitioner, A027-316-272 v. MEMORANDUM* MERRICK B. GARLAND, Attorney General,

Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals

Argued and Submitted October 16, 2024 San Francisco, California

Before: GOULD, BEA, and MENDOZA, Circuit Judges.

Chantha Kong, a native and citizen of Cambodia, petitions for our review of

the BIA’s decision that declined to reopen his immigration proceedings. In 2007,

Kong was convicted of possession of a firearm by a felon under California state

law. Because possession of a firearm by a felon was treated as a removable

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. offense at the time of his conviction, Kong was ordered removed on July 2, 2007.

In 2016 or 2017, Kong learned that, due to a change in law, his California state

conviction for possession of a firearm by a felon may no longer be a removable

offense, and that he may be able to reopen his immigration case. Kong moved to

reopen his immigration case on July 13, 2020. On August 20, 2020, the

immigration judge denied Kong’s motion to reopen. On November 9, 2022, the

BIA dismissed Kong’s appeal. Kong now petitions for review and argues that the

BIA erred by: (1) finding that Kong was not entitled to equitable tolling; (2)

declining to reopen his case sua sponte; and (3) failing to use meticulous care in

evaluating his claims. We have jurisdiction under 8 U.S.C. §§ 1251(a)(1), (b)(6).

We deny the petition for review.

“We review the denial of a motion to reopen for abuse of discretion.” Bent

v. Garland, 115 F.4th 934, 939 (9th Cir. 2024). “[B]ut [we] review purely legal

questions de novo.” Bonilla v. Lynch, 840 F.3d 575, 581 (9th Cir. 2016). “The

BIA abuses its discretion when it acts arbitrarily, irrationally, or contrary to the

law, and when it fails to provide a reasoned explanation for its actions.”

Tadevosyann v. Holder, 743 F.3d 1250, 1252-53 (9th Cir. 2014) (cleaned up)

(citation omitted).

1. The BIA did not abuse its discretion in concluding that Kong’s case

does not warrant equitable tolling. A petitioner normally has ninety days to file a

2 22-1981 motion to reopen removal proceedings from “the date of entry of a final

administrative order of removal.” 8 U.S.C. §1229a(c)(7)(C)(i). Kong filed his

petition more than thirteen years after the immigration judge’s final order of

removal. But lateness is not an absolute bar from relief; the deadline for a motion

to reopen is subject to equitable tolling. “A petitioner seeking equitable tolling

bears the burden of establishing two elements: (1) that he has been pursuing his

rights diligently, and (2) that some extraordinary circumstance stood in his way

and prevented timely filing.” Bent, 115 F.4th at 941 (quoting Holland v. Florida,

560 U.S. 631, 634 (2010)).

The BIA held that, even if the filing deadline was tolled until Kong

discovered that his offense was no longer grounds for removal, Kong did not

diligently pursue his rights between that 2016/2017 discovery and his 2020 filing

of a petition to reopen. Other than periodically checking in with attorneys who

informed him that they could not help pursue a motion to reopen his case, Kong

“did not provide evidence of any [] efforts he took to file his motion[.]” And a

petitioner’s lack of legal knowledge or counsel, absent other factors, is typically

inadequate to toll the filing deadline. See Rasberry v. Garcia, 448 F.3d 1150, 1154

(9th Cir. 2006). Given the years’ long delay in filing and the relatively minor steps

that Kong took to pursue his claims between 2016/2017 through 2020, the BIA did

not abuse its discretion in declining to apply equitable tolling to Kong’s motion.

3 22-1981 2. Kong next argues that the BIA erred in failing to reopen his case sua

sponte. In Bonilla, we held that the BIA’s decision to reopen a case sua sponte

under 8 C.F.R. § 1003.2(a) is discretionary and reviewable only “for the limited

purpose of reviewing the reasoning behind the decision for legal or constitutional

error.” 840 F.3d at 581. Kong contends that we must re-evaluate our precedent in

light of the Supreme Court’s holding in Wilkinson v. Garland, 601 U.S. 209 (2024)

and find that sua sponte decisions to reopen are reviewable. But Wilkinson

concerned an unrelated statute containing unrelated language, and a question of

interpretation not at issue here. 601 U.S. at 212. Importantly, the Supreme Court

did not hold that exercises of pure discretion, such as a failure to sua sponte reopen

under 8 C.F.R. § 1003.2(a), are now subject to review. See generally id. at 221,

225. Our precedent remains good law, and we may only review the BIA’s denial

of sua sponte reopening for legal or constitutional error. See Bonilla, 840 F.3d at

581. Because no legal or constitutional error is evident on the record, we lack

jurisdiction to review the BIA’s decision declining to reopen Kong’s case sua

sponte.

3. Finally, Kong contends that BIA failed to handle his case with the

“meticulous care” required by the Supreme Court in Bridges v. Wixon, 326 U.S.

135 (1945). Bridges held that “[m]eticulous care must be exercised lest the

procedure by which [a petitioner] is deprived of that liberty [of remaining in the

4 22-1981 US] not meet the essential standards of fairness.” 326 U.S. at 154 (emphasis

added). Kong makes only one allegation about improper procedure: he urges that

the BIA improperly assigned his case to a single judge, rather than to a three-judge

panel.

Under 8 C.F.R. § 1003.1(e)(6), BIA “[c]ases may only be assigned for

review by a three-member panel if the case presents” one of an enumerated set of

circumstances. Nowhere in the regulation does it state that a case presenting one

of those circumstances must be presented to a three-judge panel. See 8 C.F.R.

§ 1003.1(e)(6). Further, we have previously found that use of a single judge in

place of a panel does not violate due process. Falcon Carriche v. Ashcroft, 350

F.3d 845, 852 (9th Cir. 2003). We conclude that the BIA did not fail to exercise

“meticulous care” by assigning Kong’s case to a single judge rather than to a three-

judge panel.

PETITION FOR REVIEW DENIED.

5 22-1981