Jingshan Li v. Pamela Bondi

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JINGSHAN LI, No. 18-70278

Petitioner, Agency No.

A077-094-679

v.

PAMELA BONDI, Attorney General, OPINION

Respondent.

On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted October 17, 2023

Pasadena, California

Filed June 10, 2025

Before: A. Wallace Tashima, Daniel P. Collins, and

Gabriel P. Sanchez, Circuit Judges.

Opinion by Judge Sanchez;

Dissent by Judge Collins

2 LI V. BONDI

SUMMARY*

Immigration

Granting Jingshan Li’s petition for review of a decision

of the Board of Immigration Appeals denying his motion to

reopen, the panel concluded that the Board abused its

discretion by failing to offer a reasoned explanation for its

determination that it cannot or should not review claims of

ineffective assistance of counsel before a different tribunal,

and remanded.

In 2002, the Board affirmed an immigration judge’s

order of removal. Li’s former counsel filed a petition for

review in this court, but failed to file an opening brief, and

the court dismissed Li’s petition for failure to prosecute. In

2017, Li, represented by new counsel, filed a motion with

the Board, asking it to rescind and reissue its prior decision.

Li argued that his prior attorney had been ineffective by

failing to file an opening brief in the Ninth Circuit.

In denying Li’s motion, the Board noted that, under

Matter of Compean, 25 I. & N. Dec. 1 (A.G. 2009)

[Compean II], it has discretion to consider claims of

ineffective assistance of counsel based on conduct that

occurred after a final order of removal. However, the Board

declined to consider Li’s motion, stating that the claimed

ineffective assistance of counsel affected Li’s “case before

the Ninth Circuit, a different tribunal in a different branch of

the Government.”

*

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

LI V. BONDI 3

The panel began by rejecting the Government’s

arguments that the court lacked jurisdiction to review the

denial of Li’s motion. Although styled as a “motion to

reissue,” the panel concluded that Li’s motion was properly

understood as a statutory motion to reopen, which courts

have long had jurisdiction to review.

The Government also argued that the court lacked

jurisdiction because Compean II recognized the Board’s

absolute discretion to decide whether to reopen based on

alleged ineffective assistance after a final order of removal.

Rejecting that contention, the panel explained that the

jurisdiction-stripping provision in 8 U.S.C.§ 1252(a)(2)(B)

did not apply because Compean II’s conferral of discretion

was an action by the Attorney General only (as opposed to

Congress). As to the Government’s argument that there are

no meaningful standards to guide review here, the panel

wrote that courts routinely review the Board’s reopening

decisions.

Addressing Compean II, as well as longstanding circuit

precedent, the panel concluded that the Board’s power to

consider claims of ineffective assistance based on conduct of

counsel that occurred after a final order of removal includes

the power to review deficient performance that occurs before

a different tribunal. That is especially true where, as here, a

counsel’s alleged deficiencies deprive a petitioner of any

meaningful appellate review.

Concluding that the Board acted arbitrarily in denying

Li’s motion, the panel wrote that the Board’s bare statement

that the conduct occurred “before the Ninth Circuit, a

different tribunal in a different branch of the Government,”

without more, shed little light on the Board’s reasoning. If

the Board believed it had no discretion to review ineffective

4 LI V. BONDI

assistance claims based on conduct before a different

tribunal, then the agency abused its discretion. If the Board

believed that Li should have sought relief in the Ninth

Circuit, it did not explain how that would comport with the

requirement that such issues be raised first before the Board.

Finally, if the Board harbored concerns grounded in the

separation-of-powers doctrine—a topic it did not raise in its

decision—it did not explain how those concerns manifest in

Li’s case and not any of the cases that came before it.

Dissenting, Judge Collins wrote that, although the BIA’s

order was terse, its explicit hesitation to address a claim of

ineffective assistance that occurred in a proceeding in “a

different branch of the Government” was unmistakenly a

reference to separation-of-powers concerns. Further, he

wrote that the majority was wrong in holding that such

concerns are not implicated when an Executive Branch

agency entertains an ineffective assistance claim that

collaterally challenges a final judgment of an Article III

court and that seeks an order from the agency that would

effectively nullify that judgment.

Judge Collins also wrote that, to the extent that Li’s

motion separately sought reopening to pursue adjustment of

status, his motion in that respect was an appeal to the BIA’s

sua sponte authority. Judge Collins would conclude that the

court lacks jurisdiction to review the BIA’s discretion not to

reopen sua sponte here.

LI V. BONDI 5

COUNSEL

Stephen J. McIntyre (argued), Natalie D. Camastra, and

Sarah E. Higgins, O'Melveny & Myers LLP, Los Angeles,

California; Caitlin Boucher, O'Melveny & Myers LLP, San

Francisco, California; for Petitioner.

Anna E. Juarez (argued) and Julie M. Iversen, Senior

Litigation Counsel; Arthur Rabin, Lindsay Donahue, and

Lindsay Marshall, Trial Attorneys; Stephen J. Flynn,

Assistant Director; Office of Immigration Litigation; Joseph

H. Hunt, Assistant Attorney General; Brian M. Boynton,

Principal Deputy Assistant Attorney General; Civil

Division, United States Department of Justice, Washington,

D.C.; for Respondent.

OPINION

SANCHEZ, Circuit Judge:

Petitioner Jingshan Li moved to reopen proceedings

before the Board of Immigration Appeals (“Board”) on the

basis of ineffective assistance of counsel after his former

counsel failed to file an opening brief in the Ninth Circuit,

causing his petition to be dismissed for failure to prosecute.

The Board denied Li’s motion because “the claimed

ineffective assistance of counsel affected [his] case before

the Ninth Circuit, a different tribunal in a different branch of

the Government.” We conclude the Board abused its

discretion by failing to offer a reasoned explanation for its

determination that it cannot or should not review claims of

deficient performance by counsel before a different tribunal.

Board and circuit precedent have long established that the

6 LI V. BONDI

Board can—and has— reviewed such claims of ineffective

assistance in the past. Accordingly, we grant Li’s petition for

review and remand for the Board to exercise its discretion in

the first instance or explain the basis for its decision.

I.

A.

Jingshan Li, a citizen of the People’s Republic China,

arrived in the United States from China in May 1997

pursuant to a B-1 visa that allowed him to visit for three

months in connection with a fashion business. In November

1998, Li was “paroled indefinitely” into the United States

and granted work authorization in connection with a then-

pending application for adjustment of status.

On September 24, 1999, Li was a passenger in a vehicle

stopped at the United States-Mexico border at San Ysidro,

California. Two other passengers, Yinguo Liu and Bijun

Chen, presented false documents that, upon inspection,

turned out to have been issued to other persons. In a

subsequent interview with immigration officials, Liu

claimed that he had obtained the false document from Li in

Mexico and that Liu planned to compensate Li if he

succeeded in entering the country. Chen likewise told

immigration officials that she had obtained the false

document from Li. During his interview, Li denied that he

had supplied the false documents. Three days later, the

Immigration and Naturalization Service (“INS”) served Li

with a notice to appear, charging him as being removable for

knowingly assisting another alien to enter the United States

in violation of law. 8 U.S.C. § 1182(a)(6)(E)(i). Li denied

the charge, and at his subsequent appearances before an

Immigration Judge (“IJ”), he stated that he did not have any

fear of returning to China.

LI V. BONDI 7

In January 2000, Li filed a motion to terminate the

removal proceedings on the grounds that both Liu and Chen

had recanted their statements incriminating Li and that, in

light of these recantations, the Government could not carry

its burden of proof. The IJ held an evidentiary hearing over

several days in which she took evidence and testimony from

Li and three INS agents present at the September 1999

border crossing. In her February 21, 2001 ruling, the IJ

found that Li’s testimony was “not credible” and that the

initial statements of Liu and Chen to immigration officials

were more reliable than their later recantations. The IJ thus

found that Li was an “integral” participant in an “operation

to smuggle two undocumented aliens into the United States.”

The IJ held that Li had not carried his burden of

demonstrating admissibility and denied Li’s motion to

terminate. Because Li had not sought relief from removal,

the IJ ordered his removal to China.

Represented by the same counsel, Li appealed his

removal order. In his brief before the Board, Li argued that

the IJ’s adverse credibility determination and rejection of the

recantations was unsupported by the record and inadequately

explained and that the proceedings amounted to a

“miscarriage of justice.” On July 23, 2002, the Board issued

an order affirming, without opinion, the IJ’s ruling.

On August 20, 2002, Li’s new counsel, David Su, timely

filed a petition for review in this court. Upon the filing of

the administrative record, we issued an order stating that Li’s

opening brief was due 40 days later, on April 16, 2003. See

8 U.S.C. § 1252(b)(3)(C). Li never filed an opening brief or

requested an extension of the filing deadline. On November

26, 2003, more than seven months after the opening brief

was due, we issued an order dismissing Li’s petition for

8 LI V. BONDI

failure to prosecute, stating it was “Procedurally Terminated

Without Judicial Action; Default.”

B.

More than twelve years later, Li filed an I-485

application in May 2016 to adjust his immigration status to

that of a lawful permanent resident. The United States

Citizenship and Immigration Services (“USCIS”) informed

Li in writing that it could not adjust his status because he had

been ordered removed in 2002 and he “had not yet departed

under that order.” USCIS’s written notice stated that Li’s

petition for review in the Ninth Circuit had been dismissed

in 2003 for failure to file an opening brief and that removal

proceedings against him had never been terminated.

USCIS’s notice stated that Li needed to file a motion to

reopen his removal proceedings in order to apply for

adjustment of status.

On October 2, 2017, Li, represented by new counsel,

filed a motion with the Board asking it to “rescind and

reissue” its earlier July 23, 2002 order. Li argued that his

prior attorney Su had been ineffective in failing to file an

opening brief during the Ninth Circuit proceedings. In an

attached declaration, Li stated that “Su never told me the

final result of the appeal to [the] 9th Circuit but kept telling

me the case was still pending.” Li’s declaration explained

that the July 2017 notice from USCIS was “the first time I

learned the case was dismissed by [the] 9th Circuit.” Also

attached to Li’s motion was a letter notifying the California

State Bar of Su’s failure to file the brief. Li’s motion argued

that he had satisfied the Board’s requirements for ineffective

assistance of counsel claims under Matter of Lozada, 19 I. &

LI V. BONDI 9

N. Dec. 637, 639 (BIA 1988).1 Li also appealed to the

Board’s “discretionary equitable powers to serve the

interests of justice.”

The Board denied Li’s motion to reissue on December

29, 2017. The Board stated that it generally reissued

decisions “only due to Board error or administrative

problems involving the service of the Board’s decisions” and

found no such errors in Li’s case. The Board also rejected

Li’s contention that reissuance should be granted based on

his counsel’s alleged ineffective assistance in failing to file

an opening brief in the Ninth Circuit. Noting that, under

Matter of Compean, 25 I. & N. Dec. 1 (A.G. 2009)

[Compean II], the Board has discretion to “consider claims

of ineffective assistance of counsel based on conduct of the

counsel that occurred after a final order of removal had been

entered,” the Board “decline[d] to consider” Li’s motion. It

explained, “[i]nasmuch as the claimed ineffective assistance

of counsel affected [Li’s] case before the Ninth Circuit, a

different tribunal in a different branch of the Government,”

the Board would “decline to consider” Li’s claim of

“ineffective assistance of counsel against attorney Su.” In a

footnote, the Board added, “[w]hile this would not affect the

outcome of [Li’s] motion,” his motion “include[d] limited

evidence of his due diligence in pursuing the ineffective

assistance of counsel claim during the period of more than

14 years since the Ninth Circuit dismissed his petition for

1

“In Lozada, the Board set forth three requirements for supporting a

claim of ineffective assistance of counsel: (1) an affidavit by the alien

setting forth the agreement with counsel regarding the alien's

representation; (2) evidence that counsel was informed of the allegations

and allowed to respond; and (3) an indication that a complaint has been

lodged with the bar, or reasons explaining why not.” Lata v. INS, 204

F.3d 1241, 1246 (9th Cir. 2000).

10 LI V. BONDI

review.” The Board noted, for example, that Li’s declaration

had not specified when he had last inquired with attorney Su

about his petition for review.2 Li timely filed a petition for

review of the Board’s denial of his motion.

II.

We first address the Government’s contention that we

lack jurisdiction to review the Board’s decision to deny Li’s

motion to reopen. Although styled as a “motion to reissue,”

Li’s motion is properly understood as a motion to reopen

removal proceedings. To grant the relief requested—the

rescission of the Board’s July 2002 order and its replacement

with a new order—the Board must first reopen Li’s

proceedings so that it can then issue those orders. Li’s

motion is thus properly “treated as a motion to reopen.” Coyt

v. Holder, 593 F.3d 902, 904 n.1 (9th Cir. 2010) (internal

quotation marks and citation omitted).

A.

For over a century, courts have reviewed administrative

decisions denying motions to reopen removal proceedings.

See Dada v. Mukasey, 554 U.S. 1, 12 (2008). Motions to

reopen are an “important safeguard” for “ensur[ing] a proper

and lawful disposition,” id. at 18, and Congress has

consistently preserved judicial review of the denial of such

motions “even as Congress [has] curtailed other aspects of

courts’ jurisdiction over BIA rulings.” Reyes Mata v. Lynch,

576 U.S. 143, 148 (2015). With the enactment of the Illegal

Immigration Reform and Immigration Responsibility Act

(“IIRIRA”) in 1996, Congress codified the right to file a

2

The Government conceded at oral argument that the Board had not

relied on this factor as an independent basis to deny Li’s motion to

reopen.

LI V. BONDI 11

motion to reopen by “transform[ing] the motion to reopen

from a regulatory procedure to a statutory form of relief

available to the alien.” Kucana v. Holder, 558 U.S. 233, 249

(2009) (quoting Dada, 554 U.S. at 18). Neither IIRIRA nor

the later enacted Real ID Act “disturb[ed] the unbroken line

of decisions upholding court review of administrative

denials of motions to reopen.” Id. at 251.

The basis of our jurisdiction is thus long-established and

straightforward: “Whenever the Board denies an alien’s

statutory motion to reopen a removal case, courts have

jurisdiction to review its decision.” Mata, 576 U.S. at 149.

Appellate court jurisdiction to review final orders of removal

under 8 U.S.C. § 1252(a)(1) necessarily encompasses

“review of decisions refusing to reopen or reconsider such

orders.” Id. at 147. Accordingly, we have jurisdiction to

review the Board’s denial of reopening because the motion

was clearly an exercise of Li’s statutory right to file a motion

to reopen. Neither the Board nor the Government disputes

the characterization of Li’s motion as a statutory motion to

reopen. Indeed, the Board’s order treated Li’s motion as

such, adding to its primary analysis that the Board “also

decline[d]” to exercise its “sua sponte” authority to reopen

(emphasis added).3 In a footnote, the Board also discussed

equitable tolling of the statutory time limit, further reflecting

its treatment of Li’s motion as a statutory motion.

3

That the Board’s order included language stating it declined to exercise

its sua sponte authority to reopen does not affect our jurisdiction to

review the decision. Mata, 576 U.S. at 149 (noting that a court of appeals

does “not lose jurisdiction over the Board’s denial of [a] motion to

reopen just because the Board also declined to reopen [the] case sua

sponte”).

12 LI V. BONDI

Li’s motion also satisfied the statutory requirements for

a motion to reopen other than timeliness, for which Li sought

relief on the basis of equitable tolling. The motion stated the

“new facts” on which it was based, namely the alleged

ineffective assistance of counsel and the claimed recent

discovery of the Ninth Circuit’s dismissal, and the motion

was supported by an accompanying declaration. See

8 U.S.C. §§ 1229a(c)(7)(A)-(B). It was also Li’s first such

motion and so it complied with the statutory limitation that

an alien generally may file only “one motion to reopen

proceedings under this section.” Id. § 1229a(c)(7)(A).

Although Li’s motion to reopen did not satisfy the

requirement that it “shall be filed within 90 days” of the final

order of removal, see id. § 1229a(c)(7)(C)(i), the statute’s

timing requirement is not jurisdictional. See Bonilla v.

Lynch, 840 F.3d 575, 582 (9th Cir. 2016) (recognizing the

Board’s authority to equitably toll the deadline to file a

motion to reopen based on alleged ineffective assistance of

counsel); Iturribarria v. INS, 321 F.3d 889, 897–98 (9th Cir.

2003) (same); see also Mata, 576 U.S. at 147 (observing that

nearly every circuit has “affirmed its jurisdiction to decide

an appeal . . . that seeks equitable tolling of the statutory time

limit to file a motion to reopen a removal proceeding”).4

Even if Li’s motion had instead been a request for the

Board to exercise its sua sponte authority to reopen, we

would still have jurisdiction to review it. The Supreme Court

has twice declined to decide whether courts have authority

to review the Board’s discretionary exercise of its sua sponte

4

As Mata explains, whether the Board denies the motion to reopen as

untimely or rejects a request for equitable tolling “makes no difference

to the jurisdictional issue.” 576 U.S. at 148. The reason the Board offers

for denying a motion to reopen does not affect our “jurisdiction to review

that decision.” Id.

LI V. BONDI 13

authority. See id. at 148; Kucana, 558 U.S. at 251 n.18.

However, our circuit has held that we retain jurisdiction to

review the Board’s denial of a motion to reopen sua sponte

“for the limited purpose of determining whether the Board

based its decision on legal or constitutional error.” Bonilla,

840 F.3d at 581. As we noted in Bonilla, Congress has

reinforced the presumption favoring review of

“constitutional claims or questions of law raised upon a

petition for review” and has never limited judicial review of

administrative motions to reopen. Id. at 586–87 (quoting the

REAL ID Act, 8 U.S.C. § 1252(a)(2)(D)). The Government

acknowledges this point and concedes that we have

jurisdiction to review the denial of reopening premised on

legal or constitutional error. Because Li’s motion to reopen

asserted that his counsel’s ineffective performance

amounted to a due process violation, we have an independent

basis to review the Board’s sua sponte denial of reopening.

See Hernandez-Ortiz v. Garland, 32 F.4th 794, 802 (9th Cir.

2022) (explaining that counsel “caus[ing] the petitioner’s

application for relief to be denied on purely procedural

grounds for failure to file required documents” may

constitute ineffective assistance in violation of due process).

For purposes of our analysis that follows, we consider

Li’s motion to be a statutory motion to reopen. Accordingly,

the Board’s denial of the motion to reopen is within our

jurisdiction to review for an abuse of discretion. See

Kucana, 558 U.S. at 242.

B.

Even if we have jurisdiction to review the Board’s denial

of a motion to reopen as a general matter, the Government

argues that we lack jurisdiction to review the Board’s

decision here because Compean II recognized the Board’s

14 LI V. BONDI

absolute discretion to decide whether to reopen removal

proceedings based on alleged ineffective assistance of

counsel after a final order of removal has been entered. 25

I. & N. Dec. at 3. Because the Board has not defined the

scope of its discretion, the Government adds, there are no

meaningful standards by which an appellate court can review

the Board’s denial decision here. The Government is

mistaken.

In Kucana, the Supreme Court squarely rejected the

notion that the Attorney General can “shelter” the Board’s

“decisions from abuse-of-discretion appellate court review

simply by issuing a regulation declaring those decisions

‘discretionary.’” 558 U.S. at 252. The jurisdiction-stripping

provision in 8 U.S.C. § 1252(a)(2)(B) bars judicial review of

any Board decision “the authority for which is specified

under this subchapter to be in the discretion of the Attorney

General.” However, Kucana clarified that this provision

applies only to “statutory . . . specifications,” in part because

of the “longstanding exercise of judicial review of

administrative rulings on reopening motions.” Id. at 237

(emphasis added). Matters “made discretionary by the

Attorney General only,” on the other hand, “remain subject

to judicial review.” Id. at 253.

Here, the Government’s reliance on Compean II as a

basis to deprive this Court of jurisdiction repeats the error

rejected in Kucana. Compean II’s conferral of discretion

upon the Board is an action by the Attorney General only and

thus “remain[s] subject to judicial review.” Id. Moreover, if

the promulgated regulation at issue in Kucana, 8 C.F.R.

§ 1003.2, could not strip appellate courts of jurisdiction,

neither can a decision by the Attorney General which merely

interprets the Board’s authority under the same regulation.

See Matter of Compean, 24 I. & N. Dec. 710, 727–28 (A.G.

LI V. BONDI 15

2009) [Compean I], vacated by Compean II. Accordingly,

Compean II presents no jurisdictional bar to our review of

the Board’s discretionary denial of a motion to reopen.

Further, we are not cast adrift of any meaningful

standards to guide our review of the Board’s decision.

Appellate courts routinely review the Board’s reopening

decisions for abuse of discretion. See, e.g., Aliyev v. Barr,

971 F.3d 1085, 1085–86 (9th Cir. 2020); Agonafer v.

Sessions, 859 F.3d 1198, 1203 (9th Cir. 2017). Take Mata as

an example. There, the petitioner’s counsel failed to file a

brief with the Board, leading to the dismissal of his appeal

of the final order of removal. 576 U.S. at 145. On review,

the Fifth Circuit held that it lacked jurisdiction to review the

Board’s dismissal and “declined to address the merits of

Mata’s equitable-tolling claim . . . on the basis of ineffective

assistance of counsel.” Id. at 146 (cleaned up). The

Supreme Court reversed, holding that the Fifth Circuit

“should have asserted jurisdiction . . . and addressed the

equitable tolling question.” Id. at 150.

Our own precedent contains no shortage of decisions

reversing on abuse-of-discretion grounds the Board’s denial

of motions to reopen premised on ineffective assistance of

counsel claims. See, e.g., Rosales v. Barr, 980 F.3d 716, 720

(9th Cir. 2020); Salazar-Gonzalez v. Lynch, 798 F.3d 917,

921 (9th Cir. 2015); Avagyan v. Holder, 646 F.3d 672, 682

(9th Cir. 2011); Maravilla v. Ashcroft, 381 F.3d 855, 859 (9th

Cir. 2004); Fong Yang Lo v. Ashcroft, 341 F.3d 934, 939 (9th

Cir. 2003); Rodriguez-Lariz v. INS, 282 F.3d 1218, 1225–26

(9th Cir. 2002). There is nothing distinctive about the

Board’s discretion in Compean II which would warrant

placing such exercises of discretion outside the long-settled

rule that “[a]ction on motions to reopen, made discretionary

16 LI V. BONDI

by the Attorney General only, . . . remain subject to judicial

review.” Kucana, 558 U.S. at 253.

III.

Having confirmed our jurisdiction over this matter, we

proceed to the merits.5 In denying Li’s motion to reopen, the

Board declined to consider Li’s ineffective assistance of

counsel claim because the deficient performance “affected

[Li’s] case before the Ninth Circuit, a different tribunal in a

different branch of the Government.” Yet Board and circuit

precedent have long established that the Board can—and

has—reviewed such claims in the past. While the Board is

not required to exercise its discretion to grant Li’s motion to

reopen based on ineffective assistance of counsel, it must

provide a reasoned explanation for declining to do so. The

Board failed to do so here.

A.

Precedent firmly establishes that the Board has the

discretion to consider ineffective assistance of counsel

claims involving conduct before a different tribunal. We

have long recognized that the Board retains “jurisdiction to

review deficient performance claims concerning post-final

order attorney conduct.” Singh v. Napolitano, 649 F.3d 899,

902 (9th Cir. 2011) (“[W]e have twice stated, in unequivocal

language, that the Board does have jurisdiction to hear

claims such as Singh’s.” (first citing Lata, 204 F.3d at 1245–

5

We disagree with Li’s suggestion that the Board “required” him to show

“Board error or administrative problems” in order to obtain reopening of

his removal proceedings. Although the Board noted that it has

“generally” exercised its authority to reissue for those reasons, the Board

acknowledged under Compean II that it may grant reopening for

ineffective assistance of counsel based on conduct that occurred after a

final order of removal has been entered.

LI V. BONDI 17

46; and then citing Dearinger ex rel. Volkova v. Reno, 232

F.3d 1042,1044 n.4 (9th Cir. 2000))). In Compean II, the

Attorney General confirmed the Board’s “power to consider

claims of ineffective assistance of counsel based on conduct

of counsel that occurred after a final order of removal had

been entered.” 25 I. & N. Dec. at 3. Compean II clarified

that the Board “does have this discretion,” and left it “to the

Board to determine the scope of such discretion.” Id.

As our cases demonstrate, the Board’s authority to

review deficient performance claims after a final order of

removal has been entered includes the power to review the

conduct of counsel before a federal court of appeals. Lata

was the first such decision to recognize the Board’s authority

under facts strikingly similar to our own. After filing a

timely petition for review, Lata’s counsel failed to file an

opening brief in the Ninth Circuit, causing her petition to be

dismissed for failure to prosecute. 204 F.3d at 1245. After

she obtained new counsel, Lata’s appeal was reinstated and

we addressed the merits of her claims. Id. She continued to

press an ineffective assistance claim based solely on her

former counsel’s deficient performance before this court. Id.

We stated that her claim should have first been presented to

the Board, explaining that “a court of appeals is not the

appropriate forum to raise questions in the first instance,”

and noted that the Board had established a “comprehensive

procedure” for review of ineffective assistance of counsel

claims in Matter of Lozada, 19 I. & N. Dec. 637. Id. at 1245–

46. Notably, we made these points even though counsel’s

deficient conduct arose entirely before the Ninth Circuit. Id.

at 1245. In the end, we denied Lata’s ineffective assistance

claim because “the very fact that we are entertaining her

appeal” on the merits meant that Lata “cannot show a

scintilla of prejudice.” Id.

18 LI V. BONDI

In Dearinger, Natalia Volkova sought review of the

Board’s denial of her claims for asylum and withholding of

removal, but her counsel filed “a petition for review of the

BIA decision in this court one day late.” 232 F.3d at 1044.

We granted the government’s motion to dismiss the untimely

appeal. Id. Two “next friends” filed a petition for writ of

habeas corpus on behalf of Volkova in the district court,

asserting that her counsel had provided ineffective

assistance. Id. The district court granted the petition and

ordered the Board to reissue its decision so that Volkova

would have a new thirty-day period in which to file a petition

for review in the court of appeals. Id. at 1043. We affirmed,

holding that counsel’s failure to comply with the deadline for

filing a timely petition for review was ineffective assistance

amounting to a due process violation. Id. at 1045. We

explained that “where an alien is prevented from filing an

appeal in an immigration proceeding due to counsel’s error,

the error deprives the alien of the appellate proceeding

entirely.” Id. (applying a “presumption of prejudice” similar

to the presumption applied in Roe v. Flores-Ortega, 528 U.S.

470 (2000) under the Sixth Amendment).

Perhaps the clearest example of the Board’s authority to

review ineffective assistance claims involving conduct

before a different tribunal is Singh v. Holder, 658 F.3d 879

(9th Cir. 2011). After the Board denied Hoshiyar Singh’s

appeal and granted a thirty-day period for voluntary

departure, counsel failed to request a stay of voluntary

departure in order to preserve his eligibility for adjustment

of status or a stay of removal concurrently with his petition

LI V. BONDI 19

for review.6 Id. at 883. While his petition was pending in

the Ninth Circuit, Singh’s voluntary departure period

expired and he became ineligible for cancellation of removal

or adjustment of status. Id. at 883. Two months after filing

the petition for review, Singh’s counsel filed a “motion to

remand” in the Ninth Circuit, which we later deemed

procedurally improper, untimely, and “utterly worthless.”

Id. at 883–84. The upshot of this worthless motion was that

we denied Singh’s request for remand and denied his petition

for review on the merits in an unpublished disposition. Id.

at 884 (citing Singh v. Gonzales, 225 F. App’x. 632 (9th Cir

2007)).

Singh then obtained new counsel and filed a motion to

reopen before the Board. Id. That motion asserted that

Singh was “severely prejudiced” by his former counsel’s

failure to seek a stay of voluntary departure and to move to

reopen Singh’s proceedings once his I-130 petition had been

approved. Id. After the Board denied his motion to reopen,

Singh petitioned this court for review of the Board’s denial.

We held that the Board abused its discretion in finding that

Singh’s prior counsel did not render ineffective assistance in

his conduct before the Board and the Ninth Circuit. Id. at

885–86. We emphasized, for example, that former counsel’s

“decision to file a motion to remand with the Ninth Circuit

instead of filing for a stay of voluntary departure” or

pursuing other avenues of relief could not be deemed tactical

6

While Singh’s appeal to the Board was pending, he married a

naturalized U.S. citizen and paid his counsel to file a visa petition and an

application for adjustment of status. Singh, 658 F.3d at 883. An alien

who is permitted to depart voluntarily and fails to do so within the

specified time period is “‘ineligible, for a period of ten years’ for relief

including cancellation of removal and adjustment of status.” Id. (quoting

8 U.S.C. § 1229c(d)(1)(B)).

20 LI V. BONDI

because “the motion to remand was worthless: the Ninth

Circuit has no authority to grant such a motion.” Id. at 886.

As the foregoing authorities make clear, the Board’s

“power to consider claims of ineffective assistance of

counsel based on conduct of counsel that occurred after a

final order of removal had been entered” includes the power

to review deficient performance that occurs before a

different tribunal. Compean II, 25 I. & N. Dec. at 3. That is

especially true where, as here, a counsel’s alleged

deficiencies deprive an immigrant petitioner of any

meaningful appellate review of his or her claims. See

Dearinger, 232 F.3d at 1045.

B.

Given this longstanding precedent, the Board acted

arbitrarily when it denied Li’s motion to reopen on the sole

basis that Li’s claimed ineffective assistance occurred before

a “different tribunal.” An agency acts arbitrarily when it

fails to offer any reasoned explanation for its determination.

See Encino Motorcars, LLC v. Navarro, 579 U.S. 211, 221–

22 (2016).

“While the BIA ‘does not have to write an exegesis on

every contention,’” we require it “to ‘consider the issues

raised, and announce its decision in terms sufficient to

enable a reviewing court to perceive that it has heard and

thought and not merely reacted.’” Agonafer, 859 F.3d at

1206–07 (citation omitted). The Board’s bare statement that

the alleged conduct occurred “before the Ninth Circuit, a

different tribunal in a different branch of the Government,”

without more, sheds no light on its reasons for declining to

review Li’s ineffective assistance claim.

LI V. BONDI 21

If the Board believed it had no discretion to review

ineffective assistance claims based on conduct before a

different tribunal, then the agency abused its discretion. See

Singh v. Holder, 771 F.3d 647, 653 (9th Cir. 2014) (holding

that the Board’s erroneous determination that it lacked the

authority to grant petitioner’s motion was an abuse of

discretion). If the Board instead believed that Li should have

sought relief in the Ninth Circuit after the petition had been

dismissed, it does not explain how that would comport with

its own procedural requirements under Matter of Lozada,

which insists upon such issues being raised before the Board

in the first instance. See supra n.1; see also Compean II, 25

I. & N. Dec. at 2 (reinstating Lozada procedural framework).

Finally, if the Board harbored concerns grounded in the

separation-of-powers doctrine—a topic it did not raise in its

decision—it does not explain how those concerns manifest

in Li’s case and not any of the cases that came before it. The

dissent accuses us of requiring the Board to invoke the magic

words “separation-of-powers” in its decision. Dissent at 31.

But it is not merely the Board’s failure to mention the

doctrine; it is its failure to provide a reasoned explanation

why an attorney’s failure to file an opening brief before the

Ninth Circuit should implicate separation-of-powers

concerns when the exact same thing happened in Lata and

we explained that the petitioner should have first pursued

relief with the Board.7 See supra 17.

7

The dissent dismisses Lata’s discussion of the exhaustion requirements

under Matter of Lozada as dicta, but it arguably is not. Lata faulted

petitioner for not first filing her motion with the Board and then

concluded that she could not establish prejudice in any event. Lata, 204

F.3d at 1245–46. See Barapind v. Enomoto, 400 F.3d 744, 750–51 (9th

22 LI V. BONDI

The dissent surmises that Li’s motion to reopen may

have been viewed by the Board as “implicat[ing] the 233-

year-old separation-of-powers principle that Executive

Branch officials cannot review and set aside the decisions of

Article III courts.” Dissent at 34 (citing, inter alia, Plaut v.

Spendthrift Farm, Inc., 514 U.S. 211, 218 (1995) and

Hayburn’s Case, 2 U.S. 408 (1792)). But the Board did not

mention the separation-of-powers doctrine at all, much less

cite to Hayburn’s Case or any other Supreme Court decision

cited by the dissent. The dissent overlooks a fundamental

principle of administrative agency review: “It is not the role

of the courts to speculate on reasons that might have

supported an agency’s decision.” Encino Motorcars, 579

U.S. at 224 (citing SEC v. Chenery Corp., 332 U.S. 194, 196

(1947)); see also Motor Vehicle Mfrs. Ass’n of U.S., Inc. v.

State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983) (“We

may not supply a reasoned basis for the agency’s action that

the agency itself has not given.”); Garland v. Ming Dai, 593

U.S. 357, 369 (2021) (“[R]eviewing courts remain bound by

traditional administrative law principles, including the rule

that judges generally must assess the lawfulness of an

agency’s action in light of the explanations the agency

offered for it rather than any ex post rationales a court can

devise.”).

Cir. 2005) (en banc) (per curiam) (explaining that an issue “presented for

review” and “address[ed]” and “decided” on the merits is not dicta).

Even if the discussion were dicta, Lata makes clear that a petitioner can

present ineffective assistance claims to the Board concerning conduct

before a different tribunal, and the Board can adjudicate those claims. If

the Board’s review of such claims raised separation-of-powers concerns,

one would expect our court to have addressed a concern of constitutional

magnitude.

LI V. BONDI 23

In any event, the dissent’s ex post rationale for the

Board’s action does not hold water. The dissent contends

that the Board’s review of Li’s ineffective assistance claim

“necessarily asked that agency to entertain a collateral attack

against the Ninth Circuit’s judgment dismissing Li’s appeal

for failure to prosecute.” Dissent at 34. Tellingly, the

dissent cites no case for the proposition that a claim based

on his former counsel’s failure to file an opening brief in the

Ninth Circuit would amount to a collateral attack on a

judgment by this court.

Li’s request for the Board to consider his attorney’s

failure to file an opening brief before the Ninth Circuit is not

an invitation to “collaterally attack” the Ninth Circuit’s 2003

procedural order dismissing Li’s appeal. Rather, Li’s motion

asks the Board to examine whether his counsel’s

performance fell below an objectively reasonable standard

of care and whether that deficient performance “deprive[d]

[Li] of the appellate proceeding entirely,” Dearinger, 232

F.3d at 1045, or otherwise caused him prejudice, Singh, 658

F.3d at 885.

We have often described a “collateral attack” as an

indirect challenge to the merits-based determination of

another proceeding or tribunal. For example, we have stated

that “the collateral attack doctrine prevents litigants from

relitigat[ing] the merits of . . . previous administrative

proceedings.” Ctr. for Biological Diversity v. EPA, 847 F.3d

1075, 1092 (9th Cir. 2017) (emphasis added) (quoting

Americopters, LLC v. FAA, 441 F.3d 726, 736 (9th Cir.

2006)). In Tur v. FAA, we held that a party’s claim for

damages against Federal Aviation Administration officials

presented a “collateral challenge to the merits of his previous

adjudication” before the agency. 104 F.3d 290, 292 (9th Cir.

1997) (emphasis added); see also Americopters, 441 F.3d at

24 LI V. BONDI

737 (stating that “the ‘collateral attack’ doctrine [serves] to

prevent plaintiffs from using constitutional tort claims to re-

litigate previous administrative hearings” or “to evade

administrative procedures” (emphasis added) (citations

omitted)).

The Board’s consideration of Li’s motion to reopen

would not re-litigate the merits of Li’s original petition for

review because this court never addressed or adjudicated the

merits of Li’s claims. Our November 2003 order dismissed

Li’s case “for failure to prosecute” under Ninth Circuit Rule

42-1, noting that the appeal was “Procedurally Terminated

Without Judicial Action; Default.” See Ninth Cir. R. 42-1

(“When an appellant fails to . . . file a timely brief . . . an

order may be entered by the clerk dismissing the appeal.”).

Our termination “without judicial action” rested on

procedural default and did not reach the merits of Li’s

petition.

Our dissenting colleague contends that our conclusion is

contradicted by Plaut, which observed that “[t]he rules of

finality . . . treat a dismissal on statute-of-limitations

grounds the same way they treat a dismissal . . . for failure

to prosecute: as a judgment on the merits.” 514 U.S. at 228

(citing Fed. R. Civ. P. 41(b)). The dissent’s reliance on Plaut

is misplaced. In Plaut, the Supreme Court held that

Congress’ retroactive modification to the statute of

limitations under the Securities Exchange Act contravened

separation-of-powers principles by requiring federal courts

to reopen prior judgments that had been made final. Id. at

213. “The separation-of-powers violation,” Plaut explained,

lies in “depriving judicial judgments of the conclusive effect

that they had when they were announced.” Id. at 228. Li’s

case presents no congressional or executive interference in

LI V. BONDI 25

the Ninth Circuit’s 2003 judgment dismissing his petition for

failure to prosecute.

The dissent overreads Plaut’s passing reference to the

finality of claims dismissed for failure to prosecute—which

was the only time Plaut mentioned this point in its entire

decision. Id. Plaut’s citation to Rule 41(b) reflects a more

nuanced understanding than what the dissent describes. See

id. While an involuntary dismissal for failure to prosecute

may constitute an adjudication on the merits, see Fed. R. Civ.

P. 41(b), the rule provides for certain exceptions. Rule 41(b)

states that a dismissal for failure to prosecute operates as an

adjudication on the merits “[u]nless the dismissal order

states otherwise.” Id. (emphasis added). Here, this court’s

dismissal order did exactly that by specifying that Li’s

appeal was “Procedurally Terminated Without Judicial

Action.”8

Regardless, even if our prior dismissal of Li’s petition

had been an adjudication on the merits, it still does not

explain why the Board would be concerned about separation

of powers. Indeed, in Singh v. Holder, the Board entertained

8

Rule 41(b) also provides that a dismissal “for lack of jurisdiction” is

not an adjudication on the merits. Fed. R. Civ. P. 41(b). “The Supreme

Court has given a broad reading to the jurisdiction exception set forth in

Rule 41(b).” Marin v. HEW, Health Care Fin. Agency, 769 F.2d 590,

593 (9th Cir. 1985) (citing Costello v. United States, 365 U.S. 265, 285

(1961)). The jurisdiction exception encompasses not only “‘fundamental

jurisdictional defects which render a judgment void and subject to

collateral attack’” but also “‘dismissals which are based on a plaintiff’s

failure to comply with a precondition requisite to the [c]ourt’s going

forward to determine the merits of [the] substantive claim.’” Id. (quoting

Costello, 365 U.S. at 285). The point of discussing these exceptions is

that Plaut does not undermine our conclusion that the 2003 dismissal of

Li’s petition based on procedural default was not an adjudication on the

merits.

26 LI V. BONDI

a motion to reopen by the petitioner after we had denied his

petition on the merits in an unpublished decision. See 658

F.3d at 884–85. As previously discussed, we held that the

Board abused its discretion when it denied Singh’s motion to

reopen based on his counsel’s deficient performance before

the Board and the Ninth Circuit. Id. at 885. And we did so

without any handwringing over the separation-of-powers

doctrine. See id. at 885–88.

In the end, the Board’s ability to grant relief here is no

different than in Dearinger, in which the Board was directed

to reissue its order of removal to allow Volkova a new thirty-

day period in which to file a petition for review in the Ninth

Circuit to remedy her counsel’s deficient performance. 232

F.3d at 1043. The dissent makes much of the fact that

counsel’s ineffectiveness in Dearinger caused a “failure

even to trigger any judicial proceedings,” but that distinction

is immaterial. Dissent at 41. Whether counsel fails to file a

timely petition for review in the circuit court and the petition

is dismissed as untimely, or fails to file an opening brief in

the circuit court and the petition is dismissed for failure to

prosecute, the result is the same—counsel’s deficient

performance forecloses any meaningful appellate review of

their client’s claims on the merits.9

9

The dissent finds Dearinger distinguishable because a presumption of

prejudice was applied in that case and no such presumption would be

applicable here. Even if a presumption of prejudice would not apply for

the misconduct alleged here, that does not alter the fact that the Board

has the authority to consider whether counsel’s deficient performance

before the Ninth Circuit prejudiced his or her client. See Lata, 204 F.3d

at 1246 (examining whether counsel’s ineffective assistance was

prejudicial); Singh, 658 F.3d at 887 (same).

LI V. BONDI 27

***

Board and circuit precedent clearly establish the Board’s

authority to review ineffective assistance of counsel claims

involving conduct before a different tribunal. See Lata, 204

F.3d at 1245–46; Dearinger, 232 F.3d at 1044; Singh, 658

F.3d at 885. In the absence of a reasoned analysis from the

Board, we do not know why Li’s case might differ from the

cases that came before his. In the end, “[w]hatever potential

reasons the [Board] might have given, the agency in fact

gave almost no reasons at all,” and so the Board’s

“conclusory statements do not suffice to explain its

decision.” Encino Motorcars, 579 U.S. at 224. Accordingly,

we GRANT the petition for review and REMAND to the

Board for further proceedings consistent with this opinion.10

Costs are awarded to Petitioner.

COLLINS, Circuit Judge, dissenting:

In 2002, the Board of Immigration Appeals (“BIA”)

upheld an Immigration Judge’s order directing Jingshan Li’s

removal to the People’s Republic of China, and Li then

timely filed a petition for review in this court. But his

attorney, David Su, subsequently failed to file an opening

brief or to request an extension, and this court dismissed Li’s

petition for failure to prosecute, as expressly required by

§ 242(b)(3)(C) of the Immigration and Nationality Act

(“INA”). See 8 U.S.C. § 1252(b)(3)(C) (“If an alien fails to

file a brief within the time provided in this paragraph, the

10

On remand, the Board may address, if it deems appropriate, the

equitable tolling arguments raised in Li’s motion to reopen. See supra

9-10, 10 n.2. We express no opinion as to the merits of these arguments.

28 LI V. BONDI

court shall dismiss the appeal unless a manifest injustice

would result.”). Fifteen years later, Li filed a motion to

reopen in the BIA, asking it to reissue its 2002 decision so

that Li could file a new timely petition for review in this

court. The asserted ground for this motion was that his

counsel’s failure to file a merits brief in this court constituted

ineffective assistance of counsel. The BIA recognized that it

had discretion to reopen Li’s removal proceedings, but it

declined to do so, because the alleged ineffective assistance

had occurred entirely during a proceeding in the Ninth

Circuit, “a different tribunal in a different branch of the

Government,” after Li’s timely petition for review had been

filed.

The majority holds that the BIA did not sufficiently make

clear why it was declining to consider the merits of Li’s

ineffective assistance claim, but the majority also

alternatively holds that, if the asserted ground rested on

separation-of-powers concerns, then the BIA erred. See

Opin. at 21–26. The majority is wrong on both counts.

Although the BIA’s order was terse, its explicit hesitation to

address a claim of ineffective assistance that occurred in a

proceeding in “a different branch of the Government” is

unmistakably a reference to separation-of-powers concerns.

More importantly, the majority is quite wrong in holding that

an Executive Branch agency may entertain an ineffective

assistance claim that collaterally challenges a final judgment

of an Article III court and that seeks an order from the agency

that would effectively nullify that judgment. The majority

holds that, because this court’s judgment rested solely on a

failure to prosecute the appeal, rather than on an adjudication

of the merits, allowing an Executive agency to effectively

nullify that judgment would not violate the separation of

powers. See Opin. at 23–25. That conclusion is directly

LI V. BONDI 29

contrary to Supreme Court authority expressly holding that

separation-of-powers limitations on challenging judicial

judgments apply even when those judgments are based on a

dismissal “for failure to prosecute.” See Plaut v. Spendthrift

Farm, Inc., 514 U.S. 211, 228 (1995).

Accordingly, the BIA did not abuse its discretion in

relying on separation-of-powers concerns in declining to

reopen Li’s case. And to the extent that Li’s petition

challenges the BIA’s denial of sua sponte reopening, we lack

jurisdiction to review that decision. I therefore respectfully

dissent.

I

Without embracing all of its reasoning, I agree with the

majority’s ultimate conclusion that, to the extent that Li’s

motion asking the BIA to reopen his proceedings and to

reissue its 2002 decision was based on counsel’s alleged

ineffective assistance, that motion was a statutory motion to

reopen subject to the strictures of INA § 240(c)(7).1 See

8 U.S.C. § 1229a(c)(7). And because that motion was

statutory, we have jurisdiction to review the BIA’s denial of

it under INA § 242, 8 U.S.C. § 1252. See Kucana v. Holder,

558 U.S. 233, 249–50 (2010). Kucana instructs us, however,

to “employ[] a deferential, abuse-of-discretion standard of

review” in assessing the BIA’s exercise of its “broad

discretion” over such a statutory motion to reopen. Id. at 242

(simplified). Under that standard, we “may grant relief only

if the BIA acted ‘arbitrarily, irrationally, or contrary to law.’”

Lopez-Vasquez v. Holder, 706 F.3d 1072, 1078 (9th Cir.

1

As noted below, however, I disagree with the majority’s conclusion that

we have jurisdiction over Li’s motion to the extent that it sought sua

sponte reopening. See infra section IV.

30 LI V. BONDI

2013) (citation omitted). As I shall explain, I would hold

that the BIA did not abuse its discretion in denying Li’s

statutory motion.2

II

I disagree with the majority’s conclusion that the BIA did

not adequately explain the grounds for its decision denying

Li’s motion to reopen.

In addressing Li’s motion to reopen based on ineffective

assistance of counsel, the BIA expressly acknowledged that,

under Matter of Compean, 25 I. & N. Dec. 1 (A.G. 2009), it

had discretion to “consider claims of ineffective assistance

of counsel based on conduct of the counsel that occurred

after a final order of removal had been entered.” The BIA,

however, declined to exercise that discretion in Li’s favor.

As the BIA’s order explained, “[i]nasmuch as the claimed

ineffective assistance of counsel affected [Li’s] case before

the Ninth Circuit, a different tribunal in a different branch of

the Government,” the BIA “decline[d] to consider” Li’s

claim of “ineffective assistance of counsel against attorney

Su.”3 This stated hesitation to grant reopening based on

2

I also agree with the majority’s bottom-line conclusion that there is

nothing distinctive about the particular category of discretion discussed

in Matter of Compean, 25 I. & N. Dec. 1 (A.G. 2009) (addressing the

BIA’s discretion with respect to ineffective assistance claims occurring

after entry of a final removal order), that would warrant placing such

exercises of discretion outside the long-settled rule that “[a]ction on

motions to reopen, made discretionary by the Attorney General only, . . .

remain[s] subject to judicial review.” Kucana, 558 U.S. at 253.

3

In a footnote, the BIA also stated that, “[w]hile this would not affect

the outcome of [Li’s] motion,” his motion “include[d] limited evidence

of his due diligence in pursuing the ineffective assistance of counsel

LI V. BONDI 31

ineffective assistance that occurred entirely before a

“different tribunal in a different branch of the Government”

is unmistakably a reference to separation-of-powers

concerns.4

The majority’s contrary view that the BIA “did not raise”

or “mention” these concerns, see Opin. at 21–22, rests on the

untenable premise that the BIA needed to use the magic

words “separation-of-powers” in order to invoke such

concerns. See Garland v. Ming Dai, 593 U.S. 357, 369

(2021) (expressly rejecting the view that the rule of SEC v.

Chenery Corp., 318 U.S. 80 (1943), which limits reviewing

courts to only the grounds offered by the agency, “means the

BIA must follow a particular formula or incant ‘magic

words’”). “To the contrary, a reviewing court must ‘uphold’

even ‘a decision of less than ideal clarity if the agency’s path

may reasonably be discerned.’” Id. (citation omitted); see

also Encino Motorcars, LLC v. Navarro, 579 U.S. 211, 221

(2016). In the context of this case, the BIA’s express

hesitation to review a decision of a “different tribunal in a

different branch of the Government” is plainly a reference to

the separation of powers, which, after all, involves the

“division of functions among the different branches and

claim during the period of more than 14 years since the Ninth Circuit

dismissed his petition for review.” In particular, Li’s motion did not

“specify . . . the last time he inquired with attorney Su about his petition

for review.” The Government, however, has affirmatively conceded that

the BIA’s footnote did not constitute a ruling on whether Li was entitled

to equitable tolling and that the footnote does not provide an alternative

ground for upholding the BIA’s decision.

4

I agree with the majority that Li is wrong in contending that the BIA

held that reopening was limited to situations in which there was error by

the BIA or “administrative problems” involving the service of the

Board’s decision. See Opin. at 16 n.5.

32 LI V. BONDI

levels of Government,” United States v. United States Dist.

Ct. for the E. Dist. of Mich., 407 U.S. 297, 317 (1972).

Against this backdrop, the majority’s professed cluelessness

as to the grounds for the BIA’s decision is unfathomable.

III

In my view, the BIA acted well within its discretion in

invoking separation-of-powers concerns in declining to

consider the merits of Li’s ineffective assistance claim.

A

I think it is important to emphasize, at the outset, that the

BIA did not hold that considering Li’s ineffective assistance

claim on the merits would violate the separation of powers.

Instead, in exercising its “broad discretion” over motions to

reopen, Kucana, 558 U.S. at 242 (citation omitted), the BIA

invoked separation-of-powers concerns as a reason for

declining to exercise its discretionary authority in Li’s

favor.5 There is nothing unreasonable or arbitrary about

exercising one’s discretion so as to avoid a potential

constitutional concern. On the contrary, such concerns have

long been recognized as providing appropriate grounds for

caution in a wide variety of contexts. See, e.g., Hernandez

v. Mesa, 589 U.S. 93, 96 (2020) (noting that “caution” should

be exercised before extending the judge-made “Bivens”

damages remedy to new contexts); Kucana, 558 U.S. at 831

(stating that “[s]eparation-of-powers concerns . . . cautioned

. . . against” a broad reading of the INA’s limitations on

judicial review); Mathews v. Diaz, 426 U.S. 67, 81–82

(1976) (holding that, in view of the broad authority of

5

The majority is therefore wrong in suggesting that the BIA’s decision

rested on the conclusion that it lacked any discretion to consider Li’s

motion. See Opin. at 21.

LI V. BONDI 33

Congress over immigration, courts should exercise caution

in adopting “[a]ny rule of constitutional law that would

inhibit the flexibility of the political branches of government

to respond to changing world conditions”). As I shall

explain, the BIA reasonably concluded that such concerns

were present here, and the agency therefore acted well within

its wide discretion in denying Li’s motion on that basis.

In assessing the extent to which Li’s motion to reopen

raised separation-of-powers concerns, I think it is critical to

note that Li did not allege any ineffective assistance in

getting his case from the BIA into the Ninth Circuit. That

latter situation would involve ineffectiveness in invoking the

jurisdiction of a federal court of appeals rather than in

handling the merits of a proceeding as to which the

jurisdiction of the court of appeals has already been

successfully invoked and as to which that court ultimately

issues a judgment and mandate. Here, there was no

ineffective assistance in instituting the proceedings, because,

as the BIA noted, Li “filed a timely petition for review

through [his] attorney.”

Li’s motion to reopen in the BIA instead contended that

the Ninth Circuit’s dismissal order was the result of the

ineffective assistance of his counsel in handling the appeal

within the Ninth Circuit. Li’s argument was that the failure

to file an opening brief was outside the range of professional

competence and was prejudicial because it resulted in the

dismissal of his appeal. See Martinez-Hernandez v. Holder,

778 F.3d 1086, 1088 (9th Cir. 2015) (“A claim of ineffective

assistance of counsel requires a showing of inadequate

performance and prejudice.”). His proposed remedy for that

ineffective assistance, which occurred entirely within the

Ninth Circuit and which produced an adverse judgment and

mandate from this court, was to effectively vitiate that

34 LI V. BONDI

judgment by having the BIA reissue its 2002 order, so that

Li could then secure a do-over in the Ninth Circuit. As a

result, Li’s motion to reopen before the BIA necessarily

asked that agency to entertain a collateral attack against the

Ninth Circuit’s judgment dismissing Li’s appeal for failure

to prosecute.6 See Wall v. Kholi, 562 U.S. 545, 552 (2011)

(“A ‘collateral attack’ is ‘[a]n attack on a judgment in a

proceeding other than a direct appeal.’” (quoting Collateral

Attack, BLACK’S LAW DICTIONARY 298 (9th ed. 2009))

(emphasis omitted)); see also 56 AM. JUR. 2D Motions,

Rules, and Orders § 63 (May 2025 update) (“A ‘collateral

attack’ is an attempt to avoid, defeat, evade, or deny the force

and effect of a final order or judgment in an incidental

proceeding other than by appeal, writ of error, certiorari, or

motion for new trial.”).

Accordingly, Li’s motion implicates the 233-year-old

separation-of-powers principle that Executive Branch

officials cannot review and set aside the decisions of Article

III courts. See Plaut, 514 U.S. at 218 (stating that, under

Hayburn’s Case, 2 U.S. 409 (1792), “Congress cannot vest

review of the decisions of Article III courts in officials of the

Executive Branch.”); see also Chicago & S. Air Lines, Inc.

v. Waterman S.S. Corp., 333 U.S. 103, 113 (1948)

6

The majority is flatly wrong in contending that Li’s ineffective

assistance claim examines only “his counsel’s performance” and not the

Ninth Circuit’s judgment. See Opin. at 23. Prejudice is an essential

element of an ineffective assistance claim, including in the immigration

context, see Singh v. Holder, 658 F.3d 879, 885 (9th Cir. 2011), and here

Li experienced prejudice only because this court issued a judgment and

mandate dismissing his petition for review. Because Li’s motion before

the BIA sought to eliminate that prejudice by effectively nullifying that

judgment, and to do so based on conduct occurring entirely within this

court, it amounted to a collateral attack on this court’s judgment.

LI V. BONDI 35

(“Judgments within the powers vested in courts by the

Judiciary Article of the Constitution may not lawfully be

revised, overturned or refused faith and credit by another

Department of Government.”). The BIA did not act

unreasonably in declining to exercise its discretion to reopen

in a way that would implicate such separation-of-powers

concerns, and it therefore did not abuse its discretion in

denying Li’s motion.

The majority dismisses any separation-of-powers

concerns, holding that the BIA’s review of Li’s ineffective

assistance of counsel claim would not collaterally attack the

Ninth Circuit’s 2003 judgment “because this court never

addressed or adjudicated the merits of Li’s claims.” See

Opin. at 24 (emphasis added). The majority provides no

support whatsoever for its conclusion that a collateral

proceeding seeking to vitiate a judgment of dismissal for

failure to prosecute does not count as a collateral challenge

to a court judgment. That is not surprising, because there is

no such authority; on the contrary, the majority’s position

flouts controlling Supreme Court precedent.

In Plaut, the Supreme Court addressed the separation-of-

powers principles applicable to judicial final judgments in

the context of a claimed legislative interference with such

judgments. 514 U.S. at 213. Specifically, Congress in 1991

enacted § 27A of the Securities Exchange Act of 1934,

which directed the courts, upon motion of the plaintiff, to

reinstate any suit that was dismissed as time-barred under the

Supreme Court’s decision in Lampf, Pleva, Lipkind, Prupis

& Petigrow v. Gilbertson, 501 U.S. 350 (1991), if the suit

would not have been time-barred under the precedents

applicable to that suit on the day before Lampf was decided.

See Plaut, 514 U.S. at 214–15. The Court held that, by

“retroactively commanding the federal courts to reopen final

36 LI V. BONDI

judgments,” § 27A violated “separation-of-powers”

principles because it “depriv[ed] judicial judgments of the

conclusive effect that they had when they were announced.”

Id. at 219, 228.

That general constitutional limitation against depriving

judicial judgments of their conclusive effect, the Court

explained, was clear from the reasoning of the long line of

cases, beginning with Hayburn’s Case, which established

that “Congress cannot vest review of the decisions of Article

III courts in officials of the Executive Branch.” Plaut, 514

U.S. at 218; see also id. at 225–26. That is, although the

“precise holdings” of the Hayburn’s Case line of authority

was “not strictly applicable” in Plaut—which did not

involve Executive Branch review or revision of judicial

judgments—the Court held that the logic of these cases

established the broader principle that neither Congress nor

the Executive Branch could require reopening of a final

judicial judgment. Id. at 225–26. In particular, the Court

pointed to its comment in Chicago & Southern Air Lines that

“[j]udgments within the powers vested in courts by the

Judiciary Article of the Constitution may not lawfully be

revised, overturned or refused faith and credit by another

Department of Government.” Id. (quoting Chicago & S. Air

Lines, 333 U.S. at 113 (emphasis added)). The Court

likewise construed one of the opinions recounted in

Hayburn’s Case as establishing the broader proposition that

“‘[r]evision and control’ of Article III judgments is ‘radically

inconsistent with the independence of that judicial power

which is vested in the courts.’” Id. at 226 (quoting

Hayburn’s Case, 2 U.S. at 411 n.† (opinion of Wilson and

Blair, Circuit Justices, and Peters, D.J., sitting as the Circuit

Court for the District of Pennsylvania)). To the extent that

judgments may be reopened, the Plaut Court stated, that

LI V. BONDI 37

authority rests on the judiciary’s “inherent and discretionary

power, ‘firmly established in English practice long before

the foundation of our Republic,’ to set aside a judgment

whose enforcement would work inequity.” Id. at 234

(citation omitted); see also id. (noting that Federal Rule of

Civil Procedure 60(b) “embodies” this tradition).

Having established the broader proposition that final

judicial judgments may not be subject to the revision or

control of either the Executive Branch or Congress, Plaut

proceeded to explicitly reject the argument that these

constitutional limitations do not apply when the judgments

at issue “rested on the bar of a statute of limitations.” 514

U.S. at 228. As the Court explained:

The rules of finality, both statutory and judge

made, treat a dismissal on statute-of-

limitations grounds the same way they treat a

dismissal for failure to state a claim, for

failure to prove substantive liability, or for

failure to prosecute: as a judgment on the

merits. See, e.g., Fed. Rule Civ. Proc. 41(b);

United States v. Oppenheimer, 242 U.S. 85,

87–88 (1916).

Id. (emphasis added). Oppenheimer held that a “judgment

of acquittal on the ground of the statute of limitations” is a

judgment on the merits, 242 U.S. at 87, and Rule 41(b)

similarly states that, unless the court specifies otherwise, a

dismissal for lack of prosecution “operates as an

38 LI V. BONDI

adjudication on the merits,” FED. R. CIV. P. 41(b).7 It follows

that, under Plaut, the rule that neither the Executive Branch

nor Congress may “depriv[e] judicial judgments of the

conclusive effect that they had when they were announced”

applies to a “dismissal . . . for failure to prosecute.” Plaut,

514 U.S. at 228; cf. also Owens v. Kaiser Found. Health

Plan, Inc., 244 F.3d 708, 714 (9th Cir. 2001) (holding that a

dismissal “based upon plaintiffs’ failure to prosecute . . .

operates as an adjudication upon the merits” and that,

therefore, “involuntary dismissal generally acts as a

judgment on the merits for the purposes of res judicata.”

(simplified)).

Plaut’s holding that the separation-of-powers principles

protecting court judgments from executive or legislative

reopening apply fully to a “dismissal . . . for failure to

prosecute” flatly refutes the majority’s contrary contention

that the separation-of-powers principles applicable to court

judgments do not apply to dismissals for failure to

prosecute.8 As such, the majority’s sole ground for

7

Likewise, given that petitions for review may only be filed within a

limited period of time, see 8 U.S.C. § 1252(b)(1), a dismissal of an

already filed petition conclusively terminates proceedings in this court,

subject only to our limited ability to reinstate proceedings to avoid

manifest injustice. See Meyers v. Birdsong, 83 F.4th 1157, 1159–60 (9th

Cir. 2023); see also 8 U.S.C. § 1252(b)(2)(C) (limiting reinstatement of

cases dismissed for failure to file an opening brief to those in which

“manifest injustice would result”); cf. Plaut, 514 U.S. at 234

(acknowledging the longstanding authority of a court “to set aside a

judgment whose enforcement would work inequity”).

8

Nor does it matter that the court judgment dismissing Li’s appeal for

failure to prosecute was entered by the Clerk of Court “without judicial

action” rather than by an Article III judge. See Opin. at 24–25. The

dismissal was expressly required by statute, see 8 U.S.C.

LI V. BONDI 39

distinguishing those principles is meritless.9 Accordingly,

the BIA did not abuse its discretion in concluding that such

separation-of-powers principles were at least implicated

here. As explained earlier, the BIA did not need to find that

granting Li’s motion would violate separation-of-powers

principles; it suffices that the BIA exercised its discretion by

choosing to avoid having to decide such a constitutional

question.

B

The majority nonetheless contends that our precedent

has already recognized the discretion of the BIA to invoke

its reopen-and-reissue authority to nullify a Ninth Circuit

dismissal like the one at issue here. See Opin. at 16–20, 25–

§ 1252(b)(3)(C) (“If an alien fails to file a brief within the time provided

in this paragraph, the court shall dismiss the appeal unless a manifest

injustice would result”), and the Clerk was explicitly authorized to enter

the dismissal under this court’s local rules, see NINTH CIR. R. 42-1

(“When an appellant fails to . . . file a timely brief, . . . an order may be

entered by the clerk dismissing the appeal.”). Under such circumstances,

the dismissal was a ministerial act not requiring the participation of an

Article III judge, and such a “dismissal of the case, entered by the clerk

under authority of the rule of court aforesaid, was entitled to equal force

and effect, within the purpose and intent of the rule, as a judgment of

dismissal entered for similar reasons by the court itself.” Nealon v.

Davis, 18 F.2d 175, 176 (D.C. Cir. 1927). And nothing about the use of

the phrase “without judicial action” suggests that the dismissal was

thereby intended not to have conclusive effect. See Opin. at 25.

Regardless of whether the dismissal was entered by the Clerk or an

Article III judge, the same high standard of manifest injustice would

have to be met for this court to set it aside. See supra n.7.

9

I do not read the majority’s opaque footnote eight as actually endorsing

the frivolous proposition that this court’s 2003 judgment of dismissal can

somehow be viewed as resting on a “lack of jurisdiction.” See Opin. at

25 n.8 (citation omitted).

40 LI V. BONDI

27. That is wrong. We have previously held that the BIA

may—and in some cases must—reissue its decision when,

due to ineffective assistance of counsel in failing to timely

file a petition for review, the jurisdiction of this court was

not successfully invoked. But we have never held that the

BIA has the authority, consistent with the separation of

powers, to adjudicate an alien’s claim that an attorney’s

ineffective assistance during a properly filed proceeding

pending in this court wrongly caused this court to dismiss

the alien’s petition for review.

The distinction is illustrated by the primary case on

which the majority relies, Dearinger ex rel. Volkova v. Reno,

232 F.3d 1042 (9th Cir. 2000). In Dearinger, Natalia

Volkova’s request for asylum and withholding of removal

was denied by an immigration judge (“IJ”), and the BIA

affirmed that decision. Id. at 1043–44. Volkova’s counsel

“filed a petition for review of the BIA decision in this court

one day late.” Id. at 1044. Under the then-applicable well-

settled law, this failure to file a timely petition for review

was a jurisdictional defect that precluded this court from

ever acquiring jurisdiction over the matter. See Stone v. INS,

514 U.S. 386, 405 (1995); see also Magtanong v. Gonzales,

494 F.3d 1190, 1191 (9th Cir. 2007).10 Rather than file a

motion to reopen with the BIA, two “next friends” of

Volkova “filed a petition for [a writ of] habeas corpus in the

10

We recently concluded that a 2023 decision of the Supreme Court

abrogated this line of authority and that the deadline for filing a petition

for review is not jurisdictional. Alonso-Juarez v. Garland, 80 F.4th

1039, 1043 (9th Cir. 2023) (citing Santos-Zacaria v. Garland, 598 U.S.

411 (2023)). But the law at the time of our decision in Dearinger was to

the contrary, and that then-prevailing jurisdictional understanding of the

deadline therefore necessarily frames the scope of our analysis in

Dearinger.

LI V. BONDI 41

district court,” contending that her counsel had “provided

ineffective assistance.”11 Dearinger, 232 F.3d at 1044. “The

district court granted the petition and ordered” the reissuance

of “the BIA’s order denying the appeal” to permit the alien

to seek review of the order by the court of appeals. Id.

On appeal from the district court, we concluded that

counsel’s failure to comply with the jurisdictional deadline

for filing a petition for review was ineffective assistance that

amounted to a violation of due process. Dearinger, 232 F.3d

at 1045–46. Drawing on caselaw concerning the failure of

counsel to follow a criminal defendant’s instructions to file

an appeal from a conviction and sentence, see Roe v. Flores-

Ortega, 528 U.S. 470 (2000), we held that “where an alien

is prevented from filing an appeal in an immigration

proceeding due to counsel’s error, the error deprives the alien

of the appellate proceeding entirely.” Dearinger, 232 F.3d

at 1045 (emphasis added). We therefore concluded that, as

in Flores-Ortega, the comparable error in Volkova’s case

warranted a “presumption of prejudice,” because appellate

“judicial proceedings” simply “never took place.” Id.

(citation omitted); see also Opin. at 18 (agreeing that the

court in Dearinger “appl[ied] a ‘presumption of prejudice’

similar to the presumption applied in Roe v. Flores-Ortega

under the Sixth Amendment” (citation omitted)).

As the Dearinger court’s analogy to Flores-Ortega

demonstrates, Dearinger placed dispositive weight on the

failure even to trigger any judicial proceedings. The Flores-

11

Dearinger was decided before Congress, in the REAL ID Act,

precluded the use of habeas corpus jurisdiction in situations where

judicial review is available directly through a petition for review from

the BIA to a federal court of appeals. See 8 U.S.C. § 1252(a)(5); see Iasu

v. Smith, 511 F.3d 881, 886–87 (9th Cir. 2007).

42 LI V. BONDI

Ortega Court explained that its application of a presumption

of prejudice in that case rested squarely on the fact that

timely filing an appeal “is a purely ministerial task” that

must be carried out in accordance with “the defendant’s

wishes.” 528 U.S. at 477. The Court has made clear,

however, that Flores-Ortega’s presumption does not apply

beyond that specific context. Flores-Ortega’s limited

holding reflects the “broader division of labor between

defendants and their attorneys,” because, “[w]hile ‘the

accused has the ultimate authority’ to decide whether to ‘take

an appeal,’ the choice of what specific arguments to make

within that appeal belongs to appellate counsel.” Garza v.

Idaho, 586 U.S. 232, 240 (2019) (emphasis added). Indeed,

in applying a presumption of prejudice to the failure to

timely file an appeal in accordance with the defendant’s

instructions, Flores-Ortega contrasted that unique situation

with deficiencies in “counsel’s performance during the

course of a legal proceeding, either at trial or on appeal,” for

which a showing of prejudice is required. 528 U.S. at 481–

82. The Court noted that the latter category includes a

“claim that counsel neglected to file a merits brief on

appeal.” Id. at 482 (emphasis added) (citing Smith v.

Robbins, 528 U.S. 259 (2000)).12 Thus, neither the facts nor

the logic of Dearinger extends beyond the ministerial task

of filing a petition for review, and Dearinger did not

12

As Smith illustrates, the unique context of a criminal appeal also

involves affirmative obligations of defense counsel to assess whether the

appeal is frivolous before declining to file a merits brief. 528 U.S. at

264–65 (citing Anders v. California, 386 U.S. 738 (1967)). There is no

counterpart to Anders in the immigration context.

LI V. BONDI 43

consider, much less hold, that the same analysis would apply

in the context of the failure to file an opening brief.13

Because, due to counsel’s failure to carry out the

ministerial task of filing a timely petition for review, no

judicial proceeding was ever effectively initiated in

Dearinger, that case did not present the sort of separation-

of-powers concerns that gave the BIA pause here. Dearinger

therefore provides no basis for concluding, as the majority

does, see Opin. at 26–27, that the BIA abused its discretion

in relying upon such concerns and that it was instead

required to decide what is, in effect, a collateral attack on

this court’s order dismissing Li’s properly initiated

proceeding in this court.

The majority’s reliance on Lata v. INS, 204 F.3d 1241

(9th Cir. 2000), is also unavailing. Lata, like this case,

involved a timely filed petition for review that was

subsequently “dismissed for lack of prosecution” when no

13

A presumption of prejudice appears particularly inappropriate on the

facts of this case, in which it is not clear that there were any colorable

grounds that could have been raised in an opening brief in Li’s case. Li

had expressly conceded before the BIA that he had the burden of proof

to establish that he was not inadmissible. Moreover, in finding that Li

was inadmissible based on his having assisted aliens to enter the United

States illegally, see 8 U.S.C. § 1182(a)(6)(E)(i), the IJ explained at

considerable length why she deemed Li’s testimony not to be credible

and why she disbelieved the recantations of the aliens involved, who

initially admitted that Li had supplied them with false documents. See

Opin. at 6–7. Thus, in contrast to Dearinger, it is not clear that Li

identified any “plausible grounds for relief.” 232 F.3d at 1046 (citation

omitted).

44 LI V. BONDI

opening brief was filed.14 Id. at 1245. But in contrast to this

case, the petitioner in Lata obtained relief from counsel’s

error by successfully moving in this court for

“reinstatement” of her petition for review, which we then

decided on the merits. Id. Because, in Lata, the remedy for

the exact problem presented here was obtained in this court,

the facts did not present the separation-of-powers concerns

that the BIA identified in this case. The majority notes that,

in dicta, Lata went on to suggest that the petitioner there

should first have exhausted her ineffective assistance claim

in the BIA, including by complying with the requirements of

Matter of Lozada, 19 I. & N. Dec. 637 (BIA 1988). See Lata,

204 F.3d at 1246; see Opin. at 9 n.1 (listing Lozada’s

requirements). However, we ultimately concluded in Lata

that we did not need to decide whether the petitioner should

have complied with Lozada, because in any event the

petitioner could not show “a scintilla of prejudice” given that

her petition for review had been reinstated and decided fully

on the merits. Id. at 1246. Lata thus merely suggested that

the petitioner should have presented the claim to the BIA in

order to exhaust any possibly available administrative

remedies. That exhaustion-based point does not say

anything about how the BIA should have disposed of such a

14

Lata refers to the proceeding as an “appeal” that was initiated by a

“notice of appeal,” but as Li correctly notes, the proceeding in Lata was

pursuant to a petition for review. See Ming Dai, 593 U.S. at 366–67

(expressly rejecting the view that a petition-for-review proceeding is an

“appeal” as opposed to a “collateral review process Congress has

prescribed, initiating a new action in the federal courts”). In this dissent,

I have likewise colloquially used the term “appeal” to refer to the

proceedings on a petition for review, as the INA itself occasionally does.

See, e.g., 8 U.S.C. § 1252(b)(3)(C).

LI V. BONDI 45

claim had the BIA been presented with it. That is the

question we face here, and Lata provides no answer to it.

For the same reasons, the majority’s reliance on Singh v.

Napolitano, 649 F.3d 899 (9th Cir. 2011) (“R. Singh”), is

doubly unavailing. As made clear in the more complete

description of the facts contained in the R. Singh dissent and

the district court decision affirmed in that case, R. Singh is

distinguishable because it involved a situation in which, like

Dearinger, there was no timely filed petition for review. Id.

at 903 (McKeown, J., dissenting); see Singh v. Chertoff, No.

C-07-3943, 2007 WL 3010620, at *1 (N.D. Cal. Oct. 12,

2007). And to the extent that R. Singh held that such an

ineffective assistance claim should first have been exhausted

by presenting it to the BIA in a motion to reopen, that

holding, like the dicta in Lata, says nothing about how the

BIA should actually decide such a claim when presented

with it.

Finally, the majority cites Singh v. Holder, 658 F.3d 879

(9th Cir. 2011) (“H. Singh”), but that decision is likewise

inapposite. The ineffective assistance at issue in H. Singh

involved counsel’s failure to file a motion to reopen before

the BIA and failure to seek an effective stay of the BIA’s

grant of voluntary departure (either through automatic

tolling upon the filing of a motion to reopen in the BIA or by

filing a motion for stay in this court). Id. at 885–86. Neither

deficiency had any bearing on our ultimate decision to deny

H. Singh’s first petition for review, and accordingly, neither

deficiency required the BIA to undertake a collateral review

of a judgment or decision actually rendered by this court.

Moreover, in H. Singh, our ultimate finding of prejudice was

amply supported by the deficiencies of counsel that occurred

before the BIA. Id. at 887 (remanding for the BIA to

consider whether H. Singh’s failure to depart was not

46 LI V. BONDI

voluntary, in which case “he was clearly prejudiced by [his

counsel’s] failure to file [before the BIA] a motion to remand

or motion to reopen after his marriage to a United States

citizen”). Consequently, H. Singh did not involve a situation

in which ineffective assistance of counsel in this court

played a loadbearing, much less exclusive, role.

In sum, we have never held that the BIA has the authority

to decide a collateral challenge to a judgment of this court or

to grant relief that would effectively nullify such a judgment

on the ground that the judgment was the product of

ineffective assistance occurring entirely in this court. The

BIA did not abuse its discretion in hesitating to cross that

line based on separation-of-powers concerns.

IV

Li also contends that the BIA erred by not explicitly

addressing his separate request that his removal proceedings

be reopened so that he could then be considered for

adjustment of status based on his marriage to a U.S. citizen.

Although the majority finds it unnecessary to reach this issue

(because it grants the petition on other grounds), I must

address whether it would provide an alternative ground for

granting the petition. It does not.

Li correctly notes that we confirmed the BIA’s authority

to entertain such reopening requests in Singh v. Holder, 771

F.3d 647 (9th Cir. 2014) (“T. Singh”), but we rested that

conclusion in T. Singh on the BIA’s sua sponte authority to

reopen. Id. at 652–53. Although we ultimately declined to

decide the issue, we also noted that, because T. Singh’s

motion had been filed within the statutory 90-day time limit,

it might also perhaps have been thought to fall within the

statutory authority to grant a motion to reopen. Id. at 649,

651, 653. The same, however, cannot be said of Li’s separate

LI V. BONDI 47

request for reopening based on his marriage to a U.S. citizen:

because (as I shall explain) Li established no basis for tolling

the statutory deadline as to that alternative request, his

motion seeking such relief was a non-statutory one that

rested only on the BIA’s unreviewable sua sponte authority.

Even assuming that Li’s marriage to a U.S. citizen was a

change in circumstances,15 it provided no basis for equitably

tolling the statutory 90-day deadline. Equitable tolling

applies “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. INS, 321 F.3d 889, 897 (9th Cir. 2003),

and marriage to a U.S. citizen does not involve any such

circumstances. Moreover, the statutory provision governing

motions to reopen contains an express exception to the

statutory deadline for changed circumstances, but the

exception applies only when there are “changed country

conditions arising in the country of nationality or the country

to which removal has been ordered” and, even then, only

with respect to an application for asylum or withholding of

removal. 8 U.S.C. § 1229a(c)(7)(C)(ii) (emphasis added).

We have consistently held that a motion to reopen that

“‘relies solely on a change in personal circumstances,’

without also providing sufficient evidence of related

changed country conditions,” does not satisfy that statutory

exception. Rodriguez v. Garland, 990 F.3d 1205, 1209 (9th

Cir. 2021) (citation omitted).

15

The assumption is doubtful because the IJ’s 2001 ruling expressly

stated that Li then had “indicated he had an adjustment of status

application pending before the Immigration and Naturalization Service

on the basis of a petition filed by a U.S. citizen spouse.”

48 LI V. BONDI

Accordingly, to the extent that Li’s motion separately

sought reopening based on his marriage so that he could

pursue adjustment of status, his motion was in that respect

not a statutory motion to reopen and was instead an appeal

to the BIA’s sua sponte reopening authority. Here, the BIA

expressly stated that it considered “the totality of [the]

circumstances” in declining to reopen Li’s removal

proceedings sua sponte, and I discern no legal or

constitutional error in its handling of that issue. As such, I

would conclude that we lack jurisdiction to review the BIA’s

substantive exercise of its discretion not to reopen sua

sponte. See Bonilla v. Lynch, 840 F.3d 575, 588 (9th Cir.

2016).

V

For the foregoing reasons, I would deny in part and

dismiss in part Li’s petition for review. Because the majority

concludes otherwise, I respectfully dissent.