Seyed Hadian v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 17, 2024
• Docket: 18-71899
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS DEC 17 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

SEYED TOFIGH MIR HADIAN, AKA No. 18-71899 Seyed Mir Hadian, Agency No. A055-198-601 Petitioner,

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 14, 2024 San Francisco, California

Before: S.R. THOMAS and MILLER, Circuit Judges, and ROSENTHAL,** District Judge.

Seyed Tofigh Mir Hadian, a native and citizen of Iran, petitions for review of

an order of the Board of Immigration Appeals (“Board”) affirming the denial of his

motion to rescind his in absentia removal order and reopen his proceedings. We

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Lee H. Rosenthal, United States District Judge for the Southern District of Texas, sitting by designation. have jurisdiction under 8 U.S.C. § 1252(a). We deny in part and dismiss in part the

petition for review.

This Court reviews the Board’s denial of a motion to reopen for abuse of

discretion. Lara-Torres v. Ashcroft, 383 F.3d 968, 972 (9th Cir. 2004), amended sub

nom. Lara-Torres v. Gonzales, 404 F.3d 1105 (9th Cir. 2005). Under that standard,

the denial is upheld “unless [the Board] acted arbitrarily, irrationally, or contrary to

law.” Id. (alteration adopted) (quoting reference omitted). Purely legal questions

are reviewed de novo, and factual findings are reviewed for substantial evidence.

Najmabadi v. Holder, 597 F.3d 983, 986 (9th Cir. 2010). “A factual finding is ‘not

supported by substantial evidence when any reasonable adjudicator would be

compelled to conclude to the contrary based on the evidence in the record.’” Aden

v. Wilkinson, 989 F.3d 1073, 1079 (9th Cir. 2021) (quoting Bringas-Rodriguez v.

Sessions, 850 F.3d 1051, 1059 (9th Cir. 2017) (en banc)).

I.

Mr. Hadian argues that the Board erred in concluding that equitable tolling of

the deadline to file a motion to reopen and rescind was not warranted. Equitable

tolling applies “in situations where, despite all due diligence, the party invoking

equitable tolling is unable to obtain vital information bearing on the existence of the

claim.” Socop-Gonzalez v. I.N.S., 272 F.3d 1176, 1193 (9th Cir. 2001) (en banc)

(alteration adopted) (quotation marks and quoting reference omitted), abrogated on

2 other grounds by Smith v. Davis, 953 F.3d 582 (9th Cir. 2020) (en banc). In the

context of ineffective assistance of counsel, this Court “recognizes equitable tolling

of deadlines . . . on motions to reopen or reconsider during periods when a petitioner

is prevented from filing because of deception, fraud, or error, as long as the petitioner

acts with due diligence in discovering the deception, fraud, or error.” Iturribarria v.

I.N.S., 321 F.3d 889, 897 (9th Cir. 2003).

Mr. Hadian acknowledges that he “knew of the date, time and location of” his

February 2011 hearing. A Notice of Hearing and a Notice to Appear were mailed to

Mr. Hadian at his home address, both of which informed him of the consequences

of failing to appear. A second Notice of Hearing was personally served on Mr.

Hadian’s attorney, Sean Donrad, at the June 2010 hearing. Mr. Donrad and Mr.

Hadian severed their relationship before the February 2011 hearing, and Mr. Hadian

did not have new counsel at that time.

Mr. Hadian did not attend the hearing in February 2011. After the hearing

date passed, Mr. Hadian did not contact the immigration court to ask about the status

of his case. Besides looking for a new attorney, Mr. Hadian did not do anything

between February 2011 and November 2011 to “obtain vital information bearing on

the existence of [his] claim.” See Socop-Gonzalez, 272 F.3d at 1193 (quoting

reference omitted). That period was well longer than the 180 days he had to file a

motion to reopen. See 8 U.S.C. § 1229a(b)(5)(C)(i). Based on this record, the Board

3 did not abuse its discretion in concluding that Mr. Hadian failed to exercise due

diligence and was not entitled to equitable tolling.

Because Mr. Hadian’s motion was time-barred, we need not address the

Board’s determination that exceptional circumstances did not warrant reopening Mr.

Hadian’s case.1

II.

We lack jurisdiction to review the Board’s refusal to sua sponte reopen

deportation proceedings except “for the limited purpose of reviewing the reasoning

behind the decision[] for legal or constitutional error.” Bonilla v. Lynch, 840 F.3d

575, 588 (9th Cir. 2016). We have identified no legal or constitutional error

underlying the Board’s conclusion that sua sponte reopening is unwarranted. We

lack jurisdiction to consider any other challenge to the refusal. See id.

***

We dismiss the petition for review as to Mr. Hadian’s motion to reopen to the

extent Mr. Hadian challenges the denial of sua sponte reopening for non-legal error,

and we deny the remainder of the petition.

PETITION DENIED IN PART AND DISMISSED IN PART.

1 Without equitable tolling, Mr. Hadian’s alternative argument that his case should be reopened under Matter of M-S-, 22 I&N Dec. 349 (B.I.A. 1998) also fails. See 8 C.F.R. § 1003.23(b)(1) (setting a 90-day deadline for filing a motion to reopen if the applicant does not seek rescission of an in absentia removal order or fall into another exception listed in 8 C.F.R. § 1003.23(b)(4)).