Mohamed Abbas v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: January 23, 2023
• Docket: 19-71664
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JAN 23 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

MOHAMED KAMAL ELDIN ABBAS, No. 19-71664

Petitioner, Agency No. A096-684-420

v. MEMORANDUM* MERRICK B. GARLAND, Attorney General,

Respondent.

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

Argued and Submitted November 18, 2022 San Francisco, California

Before: TASHIMA and PAEZ, Circuit Judges, and SESSIONS,** District Judge.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable William K. Sessions III, United States District Judge for the District of Vermont, sitting by designation. Mohamed Kamal Eldin Abbas (“Abbas”), a native and citizen of Egypt,

petitions for review of a decision by the Board of Immigration Appeals (“BIA”)

denying his motions to reconsider and to reopen removal proceedings. We review

the denial of a motion to reopen and a motion to reconsider for abuse of discretion.

See Cano-Merida v. INS, 311 F.3d 960, 964 (9th Cir. 2002). We review the

agency’s factual findings for substantial evidence. See Hernandez-Ortiz v.

Garland, 32 F.4th 794, 800 (9th Cir. 2022). We have jurisdiction under 8 U.S.C.

§ 1252. We grant the petition and remand for further proceedings consistent with

this disposition.

Abbas first argues that a defective Notice to Appear (“NTA”) deprived the

immigration court of jurisdiction over his removal proceedings. Our recent

decision in United States v. Bastide-Hernandez forecloses this argument, and we

therefore reject it. 39 F.4th 1187, 1188, 1192–93 (9th Cir. 2022) (en banc) (holding

that a defective NTA does not deprive the immigration court of subject matter

jurisdiction).

Abbas’s motion to reopen was untimely and number-barred, see 8 C.F.R.

§ 1003.2(c)(2), and his motion to reconsider was untimely, see 8 C.F.R.

§ 1003.2(b)(2). He has advanced two theories for overcoming these procedural

bars. First, he seeks application of an exception to the bars based on changed

country conditions relevant to his claims for asylum, withholding, and CAT relief,

2 see 8 C.F.R. § 1003.2(c)(3)(ii), and claims the BIA abused its discretion by failing

to review his evidence. The BIA decision included only a cursory

acknowledgement of the country conditions evidence rather than a substantive

analysis. This error was harmless, however, because the record does not establish

that there has been a material change in country conditions since Abbas’s initial

proceedings. See Malty v. Ashcroft, 381 F.3d 942, 945 (9th Cir. 2004).

Separately, Abbas argued in his motion to reopen that equitable tolling of the

time and number bars was warranted due to a change in law that made him newly

eligible to apply for cancellation of removal. The time and number bars applicable

to motions to reopen and reconsider are subject to equitable tolling. Perez-

Camacho v. Garland, 42 F.4th 1103, 1110 (9th Cir. 2022) (a noncitizen “can

secure review of a motion to reopen that would otherwise be time-and number-

barred if the deadline is subject to equitable tolling”). For equitable tolling to

apply, a petitioner must show “(1) that he has been pursuing his rights diligently,

and (2) that some extraordinary circumstances stood in his way and prevented

timely filing.” Holland v. Florida, 560 U.S. 631, 632 (2010). A change in law is an

extraordinary circumstance that warrants tolling of a noncitizen’s deadline to apply

for relief. See Lona v. Barr, 958 F.3d 1225, 1230–31 (9th Cir. 2020).

The BIA failed to analyze Abbas’s argument for equitable tolling based on

this change in law in its decision. The record establishes that Abbas is entitled to

3 equitable tolling with respect to this claim. In 2018, the Supreme Court held that

“[a] putative notice to appear that fails to designate the specific time or place of the

noncitizen’s removal proceedings is not a ‘notice to appear under section 1229(a),’

and so does not trigger the stop-time rule.” Pereira v. Sessions, 138 S. Ct. 2105,

2113–14 (2018) (quoting 8 U.S.C. § 1229b(d)(1)). The NTA in Abbas’s case did

not specify the date or time for Abbas’s appearance as required by statute. Abbas

therefore moved for reconsideration and reopening within one month of the

Pereira decision, as he had accrued the necessary period of physical presence since

receiving the deficient NTA. The record also indicates that Abbas vigorously

pursued his rights prior to Pereira. His actions were diligent, Pereira constituted

an extraordinary circumstance, and equitable tolling applies.

The BIA allowed for the possibility that the motion was not barred but

concluded that Abbas’s cancellation of removal claim nonetheless failed because

Abbas had stopped accruing continuous physical presence when the Immigration

Judge (“IJ”) entered an order of removal in 2012. A final removal order, however,

does not trigger the stop-time rule. Quebrado Cantor v. Garland, 17 F.4th 869, 870

(9th Cir. 2021). This basis for denial is thus contrary to law. Under Pereira and

Quebrado Cantor, the record does not reflect any event that would have stopped

the accrual of qualifying time since Abbas entered the United States in 2003. See

also Niz-Chavez v. Garland, 141 S. Ct. 1474, 1485 (2021) (holding that a

4 supplemental notice informing the noncitizen of the time and place of a hearing

does not trigger the stop-time rule). Accordingly, Abbas has accrued more than the

ten years of continuous physical presence required by the statute. 8 U.S.C.

§ 1229b(b)(1)(A).

The BIA also found, without discussion, that Abbas’s evidence was

insufficient to warrant a favorable exercise of discretion given that the IJ denied

Abbas’s claim for adjustment of status as a matter of discretion in 2011. Because

the BIA’s conclusion was arbitrary and not supported by substantial evidence, it

abused its discretion. Abbas’s cancellation application, which he properly attached

to his motion to reopen, shows that his mother’s health has declined significantly

since 2011. The other findings that formed the basis for the IJ’s negative

determination in 2011, such as the recency of Abbas’s criminal conduct, are

similarly outdated given the passage of time, the intervening change in the legal

classification of Abbas’s sole conviction, and his securing of state post-conviction

relief. See 8 U.S.C. § 1229b(b)(1)(B)-(C). The BIA’s failure to analyze any such

facts was an abuse of discretion as the agency did not provide a reasoned

explanation for its decision. See Movsisian v. Ashcroft, 395 F.3d 1095, 1098 (9th

Cir. 2005) (“We have long held that the BIA abuses its discretion when it fails to

provide a reasoned explanation for its actions.”). The record contains compelling

evidence of Abbas’s changed equities since 2011 that supports a favorable

5 discretionary determination, and the BIA was required to consider this evidence.

On this record, Abbas has submitted sufficient evidence to warrant the

application of equitable tolling. He has also established that he is prima facie

eligible for cancellation of removal, see Tadevosyan v. Holder, 743 F.3d 1250,

1255 (9th Cir. 2014) (explaining that “a prima facie case for relief is sufficient to

justify reopening”), and that it would be “worthwhile to develop the issues at a

hearing,” Matter of L-O-G-, 21 I. & N. Dec. 413, 420 (BIA 1996). We therefore

grant the petition and remand to the BIA for proceedings consistent with this

disposition.

PETITION GRANTED and REMANDED.