Petrache v. Bondi

• Court: Court of Appeals for the Ninth Circuit
• Decided: February 25, 2025
• Docket: 21-417
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS FEB 25 2025 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

HORTENSIA PETRACHE, No. 21-417 Agency No. Petitioner, A200-231-921 v. MEMORANDUM* PAMELA BONDI, Attorney General,

Respondent.

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

Submitted February 18, 2025**

Before: SILVERMAN, WARDLAW, and DESAI, Circuit Judges.

Hortensia Petrache, a native and citizen of Romania, petitions pro se for

review of the Board of Immigration Appeals’ (“BIA”) order summarily dismissing

her appeal from an immigration judge’s decision denying her motion to reopen

removal proceedings. We have jurisdiction under 8 U.S.C. § 1252. We grant the

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). petition for review and remand.

While this petition was pending, the BIA overruled its longstanding position

that the notice of appeal deadline in 8 C.F.R. § 1003.38(b) is jurisdictional and

held that the deadline is subject to equitable tolling if a noncitizen establishes that

they have been “pursuing their rights diligently” and that “some extraordinary

circumstance prevented timely filing.” Matter of Morales-Morales, 28 I. & N.

Dec. 714, 716-17 (BIA 2023). The BIA has not yet considered whether Petrache

can establish that equitably tolling should apply. We therefore remand for the BIA

to consider equitable tolling in the first instance. See INS v. Orlando Ventura, 537

U.S. 12, 16-18 (2002); see also Vasquez-Rodriguez v. Garland, 7 F.4th 888, 896

(9th Cir. 2021) (exhaustion not required where resort to the agency would be

futile).

The motion for a stay of removal is granted. The stay of removal remains in

place until the mandate issues.

Each party must bear its own costs for this petition for review.

PETITION FOR REVIEW GRANTED; REMANDED.

2 21-417