Ricardo Gonzalez-Rodriguez v. Robert Wilkinson

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 4, 2021
• Docket: 18-71683
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 4 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

RICARDO GONZALEZ-RODRIGUEZ, No. 18-71683 19-71924 Petitioner, Agency No. A072-670-859 v.

ROBERT M. WILKINSON, Acting MEMORANDUM* Attorney General,

Respondent.

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

Argued and Submitted February 9, 2021 San Francisco, California

Before: BERZON, CHRISTEN, and BADE, Circuit Judges.

Ricardo Gonzalez-Rodriguez was placed in deportation proceedings in 1994

and deported in 2001. In 2018, he filed a motion to reopen on the basis of

ineffective assistance of counsel and a motion to reconsider on the basis of Pereira

v. Sessions, 138 S. Ct. 2105 (2018). He now petitions for review of the BIA’s

denial of both motions. We have jurisdiction under 8 U.S.C. § 1252. For the

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. reasons that follow, we grant the petition with respect to the motion to reopen and

deny the petition with respect to the motion to reconsider.

1. The BIA denied petitioner’s motion to reopen as procedurally barred for

two alternative reasons.

First, the BIA applied what is known as the “departure bar,” which states

that “[a] motion to reopen . . . shall not be made by or on behalf of a person who is

the subject of exclusion, deportation, or removal proceedings subsequent to his or

her departure from the United States.” 8 C.F.R. § 1003.2(d). But “[t]he regulation

is phrased in the present tense and so by its terms applies only to a person who

departs the United States while he or she ‘is the subject of

removal . . . proceedings.’ Because petitioner’s original removal proceedings were

completed when he was removed . . . , he did not remain the subject of removal

proceedings after that time.” Lin v. Gonzales, 473 F.3d 979, 982 (9th Cir. 2007)

(quoting 8 C.F.R. § 1003.23(b)(1) (emphasis and first ellipses in original)).

Second, the BIA applied the time and number bars, 8 C.F.R. § 1003.2(c)(2),

and held that such bars should not be equitably tolled based on a reasonable person

standard. According to the BIA, petitioner’s motion did not show that he “took

reasonable actions that could establish due diligence between 2001,” when he was

deported, “and 2017, when he consulted his present counsel.” But the proper

question is not what a reasonable person would do but rather “if (and when) . . . a

2 reasonable person in petitioner’s position would suspect the specific fraud or error

underlying [his] motion to reopen.” Bonilla v. Lynch, 840 F.3d 575, 582 (9th Cir.

2016) (emphasis added).

Nothing in the BIA’s brief equitable tolling analysis takes account of the

petitioner’s personal circumstances, which include: that petitioner was sixteen

years old at the time his father applied for asylum for him and his family; that his

attorney was dealing with his father, not with him; that his attorney was suspended

from the practice of law, unbeknownst to petitioner, for part of the period he was

representing petitioner; that his attorney said he would take care of filing a motion

to reopen, but actually filed it out of time; that his attorney did not tell petitioner

that the motion was rejected for untimeliness; that petitioner learned only in 2017

that his attorney was being prosecuted for the unauthorized practice of law and at

that point began to suspect his attorney’s actions may have contributed to the

outcome of his case years earlier; and that, according to an examining therapist

who submitted a report, petitioner has Post-Traumatic Stress Disorder and

Generalized Anxiety Disorder as a result of experiencing sexual abuse as a child.

As the BIA did not apply the correct standard or consider the proper facts, its

conclusion cannot stand. See Cerezo v. Mukasey, 512 F.3d 1163, 1166 (9th Cir.

2008) (“The BIA abuses its discretion when it makes an error of law.”); Avagyan v.

Holder, 646 F.3d 672, 681 (9th Cir. 2011) (“The BIA abuses its discretion when it

3 denies petitioner’s claim with no indication that it considered all of the evidence …

presented by the petition.”).

We therefore grant the petition as to the motion to reopen and remand to the

BIA for analysis of the due diligence question applying the proper standard to

petitioner’s declaration. We note that, as in Singh v. Gonzales, “[t]he more

difficult question [may be] whether [petitioner] acted with due diligence to

definitively learn of the fraud after he became suspicious of the fraud.” 491 F.3d

1090, 1096 (9th Cir. 2007) (emphasis added). We further note that the BIA did not

alternatively address the merits of the motion to reopen. It may, of course, do so on

remand, either alternatively or in lieu of an equitable tolling analysis.

2. In contrast to its handling of the motion to reopen, the BIA denied

petitioner’s motion to reconsider on the merits.

Petitioner originally applied in 1996 for suspension of deportation, but

because his “Order[] to Show Cause [was] issued on August 6, 1994, [he was] well

short of the 7 years needed to qualify.” See Alcaraz v. I.N.S., 384 F.3d 1150, 1153-

56 (9th Cir. 2004). After petitioner was deported, Pereira held that “[a] notice that

does not inform a noncitizen when and where to appear for removal proceedings is

not a ‘notice to appear …’ and therefore does not trigger the stop-time rule” for

purposes of the calculation of continuous physical presence. 138 S. Ct. at 2110.

The BIA concluded that the logic of “Pereira does not apply” to petitioner’s case

4 because of the statutory distinction between a Notice to Appear and an Order to

Show Cause. A Notice to Appear must specify the date and time of removal

proceedings but there was no similar textual requirement for Orders to Show

Cause. Compare 8 U.S.C. § 1252b(a)(2)(A)(i) (1994), with 8 U.S.C. §

1229(a)(1)(G)(i) (2018). As the petitioner has provided no basis for disapproving

the BIA’s conclusion, we uphold the BIA’s ruling on this point.

GRANTED IN PART; REVERSED IN PART; AND REMANDED FOR

RECONSIDERATION.1

1 Petitioner’s request for judicial notice and supplemental argument (Dkt. 63 in No. 18-71683 & Dkt. 47 in No. 19-71924) is denied.