Sun v. Holder

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

WENQIN SUN, 

Petitioner,

No. 06-74450

v.

 Agency No.

MICHAEL B. MUKASEY, Attorney A079-592-229

General,

Respondent.



WENQIN SUN, 

Petitioner, No. 07-70691

v.

 Agency No.

A079-592-229

MICHAEL B. MUKASEY, Attorney

General, OPINION

Respondent.



On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted

October 21, 2008—San Francisco, California

Filed February 9, 2009

Before: Mary M. Schroeder, Dorothy W. Nelson, and

Stephen Reinhardt, Circuit Judges.

Opinion by Judge Schroeder

1449

SUN v. MUKASEY 1451

COUNSEL

Drew Sieminski, Oakland, California, for the petitioner.

Jem C. Sponzo, Washington, D.C., for the respondent.

OPINION

SCHROEDER, Circuit Judge:

Petitioner Wenqin Sun is a native and citizen of China, and

she is also a battered spouse. The Board of Immigration

1452 SUN v. MUKASEY

Appeals (“BIA”) affirmed the Immigration Judge’s (“IJ’s”)

denial of asylum, withholding of removal, and relief under the

Convention Against Torture, and entered a final order of

removal in 2004. Sun did not seek review of that decision and

now seeks review of the BIA’s denial, on timeliness grounds,

of her motion to reopen removal proceedings on the basis of

her successful application to qualify for an adjustment of sta-

tus under the Violence Against Women Act (“VAWA”), 8

U.S.C. § 1154. Her motion to reopen was not filed within the

year provided for in 8 U.S.C. § 1229a(c)(7)(C)(iv)(III)

because of errors of counsel. She seeks review of the BIA’s

rulings that: (1) she did not adequately show her first lawyer

was ineffective; and (2) she did not act diligently to obtain

new counsel after becoming aware of the first lawyer’s omis-

sions. Sun also seeks review of the BIA’s denial of her motion

for reconsideration of its previous decision, which the BIA

also denied after finding that Sun failed to specify any errors

of fact or law that would justify reversing the earlier decision.

As a threshold matter, we must address the government’s

contention that we should not consider Sun’s petition for

review because she failed to appear on the date set for her

removal and is for that reason a “fugitive from justice” with-

out entitlement to review in this court. The fugitive disentitle-

ment doctrine developed to prevent appellate review for

escapees from the criminal justice system. Regardless of

Sun’s conduct at the time she was ordered to report for

removal, she is not now a fugitive from justice, and there is,

therefore, no reason for us to treat her as if she were by refus-

ing to consider her petition for review in this court.

We therefore examine the bases for the BIA’s rulings and

grant the petitions for review. Regardless of the Board’s hold-

ing that Sun fell short of the strict requirements for establish-

ing ineffective assistance of counsel under Matter of Lozada,

19 I. & N. Dec. 637 (B.I.A. 1988), Sun acted diligently in

retaining new counsel and is entitled to the benefit of the

equitable tolling doctrine. See Iturribarria v. INS, 321 F.3d

SUN v. MUKASEY 1453

889, 897-99 (9th Cir. 2003). We remand to the BIA for con-

sideration of the merits of Sun’s motion to reopen. We also

hold that the BIA should have granted Sun’s motion to recon-

sider, because Sun clearly pointed out the factual error under-

lying the BIA’s denial of her motion to reopen. See 8 C.F.R.

§ 1003.2(b)(1).

I. Fugitive disentitlement

[1] The government contends that Sun’s petition for review

should be dismissed on the basis of the fugitive disentitlement

doctrine, which was developed over a century ago to allow

appellate courts to dismiss the appeals of convicted criminals

who have fled. Smith v. United States, 94 U.S. 97 (1876).

Under the doctrine, a fugitive is precluded from appellate

review “as an appropriate sanction” when he remains at large

during “the ongoing appellate process.” Ortega-Rodriguez v.

United States, 507 U.S. 234, 242 (1993). The “paradigmatic

object of the doctrine is the convicted criminal who flees

while his appeal is pending.” Antonio-Martinez v. INS, 317

F.3d 1089, 1092 (9th Cir. 2003).

[2] In the immigration context, we have dismissed petitions

for review by aliens who have fled custody and cannot be

located when their appeals come before this court. See, e.g.,

id. at 1091-93 (petitioner had been missing and out of touch

with his attorney for two years); Hussein v. INS, 817 F.2d 63,

63 (9th Cir. 1987) (petitioner had escaped from federal immi-

gration detention facility and was at large). Other circuits that

have considered the issue have also applied the doctrine to

fugitive aliens under similar circumstances. See, e.g., Martin

v. Mukasey, 517 F.3d 1201, 1203-04 (10th Cir. 2008); Gao v.

Gonzales, 481 F.3d 173, 175-77 (2d Cir. 2007); Garcia-

Flores v. Gonzales, 477 F.3d 439, 441-42 (6th Cir. 2007);

Sapoundjiev v. Ashcroft, 376 F.3d 727, 728-30 (7th Cir.

2004); Arana v. INS, 673 F.2d 75, 76-77 (3d Cir. 1982) (per

curiam).

1454 SUN v. MUKASEY

No court has ever applied the doctrine to an alien whose

whereabouts are known and who has not fled from custody.

This is the first case in this circuit to consider the applicability

of the doctrine in such circumstances. We therefore look to

the justifications offered to support its application.

Where the doctrine may apply, the court has some discre-

tion to decide whether to apply it. United States v. Van Cau-

wenberghe, 934 F.2d 1048, 1054-55 (9th Cir. 1991). Two

justifications frequently advanced in support of dismissal on

a fugitive disentitlement theory are: (1) the pragmatic concern

with ensuring that the court’s judgment will be enforceable

against the appellant; and (2) the equitable notion that a per-

son who flouts the authority of the court waives his entitle-

ment to have his appeal considered. See Ortega-Rodriguez,

507 U.S. at 240; Antonio-Martinez, 317 F.3d at 1092.

[3] In light of these concerns, we must conclude that the

critical question the court must ask when deciding whether to

apply the fugitive disentitlement doctrine is whether the

appellant is a fugitive at the time the appeal is pending. The

Supreme Court has held that for disentitlement to be appropri-

ate, there must be “some connection between a defendant’s

fugitive status and the appellate process.” Ortega-Rodriguez,

507 U.S. at 244. Thus dismissal is not warranted even in the

case of a former fugitive, if his “fugitive status at no time

coincides with his appeal.” Id.

[4] Although Sun did not report for removal from the

United States in August of 2004, as ordered by the BIA, that

failure does not make her a fugitive now, during the pendency

of her petition to review the BIA’s denial of reopening. Sun’s

whereabouts are known to her counsel, DHS, and this court.

Because Sun is not currently a fugitive, and has not been a

fugitive at least since the time she first filed a petition for

review with this court, we hold it would be inappropriate to

apply the fugitive disentitlement doctrine to dismiss Sun’s

SUN v. MUKASEY 1455

case. We will consider the merits of her appeal, which relate

to the timeliness of her motion to open removal proceedings.

II. Timeliness

We have jurisdiction under 8 U.S.C. § 1252(a) to review

the BIA’s denial of Sun’s motion to reopen, because the

Board’s determination that an alien has failed to provide a

sufficient justification for an untimely motion presents a

mixed question of fact and law, rather than a discretionary

determination, as urged by the government. See Ghahremani

v. Gonzales, 498 F.3d 993, 998-999 (9th Cir. 2007). We turn

to the merits of Sun’s arguments.

Sun’s problems all stem from the fact that she retained two

lawyers: one to handle her successful VAWA petition, and the

other to handle her unsuccessful efforts to seek relief from

removal through asylum. According to Sun, the lawyer han-

dling the VAWA adjustment in 2003 told her to forget about

applying to the courts for relief, even though the IJ already

ordered her removed and the removal order was pending on

appeal to the BIA. When the BIA denied the appeal in Janu-

ary 2004, Sun was required to move to reopen the proceeding

to seek adjustment of status under VAWA within one year of

that BIA ruling. 8 U.S.C. § 1229a(c)(7)(C)(iv)(III). Her

VAWA attorney did not do so, and neither did her asylum

attorney.

Sun’s VAWA attorney was apparently under the mistaken

impression that the VAWA petition had to have been granted

before Sun could seek to reopen removal proceedings. The

statute, however, requires only that the application be attached

to the motion. 8 U.S.C. § 1229a(c)(7)(C)(iv)(II). Sun’s lawyer

could, therefore, have moved to reopen as soon as the BIA

ruled in 2004, because the VAWA petition was then pending.

The VAWA petition was approved in July 2005, and on

January 26, 2006, Sun received an interview notice regarding

1456 SUN v. MUKASEY

her application for VAWA adjustment of status. She immedi-

ately obtained new counsel, who moved to reopen in February

2006, more than two years after the BIA’s decision denying

her appeal.

In the motion to reopen, Sun asked that the delay be

excused on the grounds of ineffective assistance of her origi-

nal VAWA counsel or, in the alternative, on the grounds of

equitable tolling, which applies when a petitioner acts

promptly after discovering counsel’s error. Iturribarria, 321

F.3d at 897.

The BIA denied the claim of ineffective assistance of coun-

sel because of Sun’s failure to comply with the strict require-

ments laid down by the Board in Matter of Lozada, 19 I. &

N. Dec. at 637, and generally upheld by this court, see, e.g.,

Castillo-Perez v. INS, 212 F.3d 518, 525-27 (9th Cir. 2000).

The BIA was troubled by Sun’s failure to delineate the precise

contours of her agreement with her original VAWA attorney,

although it appears from her unsworn letter to the California

State Bar, complaining about her attorney’s errors, that her

attorney was aware of the pending removal proceedings and

improperly ignored them.

[5] Whatever the failings of counsel, however, we need not

address ineffectiveness of counsel in this case. This is because

in denying relief on the alternative ground of equitable tolling,

the BIA, when it concluded that Sun had not acted diligently

in retaining new counsel to file a motion to reopen, made an

erroneous factual assumption. The BIA assumed that Sun

must have received the interview notice before her VAWA

petition was approved in 2005, so the BIA believed she had

waited more than six months to obtain new counsel and seek

reopening. In fact, however, the interview notice did not relate

to the grant of the VAWA petition. It pertained to her applica-

tion for adjustment of status, for which the grant of the

VAWA petition was a prerequisite. 8 U.S.C. § 1255(a). The

interview notice is clearly dated January 26, 2006, and sets an

SUN v. MUKASEY 1457

interview date of February 14, 2006. In responding to the

notice, Sun stated that her attorney needed time to prepare,

and her new attorney filed the motion to reopen within two

weeks of Sun’s response.

[6] Accordingly, Sun acted with admirable diligence after

retaining new counsel, who immediately recognized the errors

of his predecessors. She is entitled to equitable tolling under

the principle we laid down in Iturribarria, in which we held

that 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.” 321 F.3d at 897.

[7] Thus, in this case, Sun is entitled to a tolling of the one-

year limitation period until she met with present counsel in

connection with the January 26, 2006 interview notice and

became aware of her prior counsel’s legal errors. See id. The

record plainly demonstrates that Sun retained present counsel

after receiving the interview notice in late January 2006, and

filed her motion to reopen less than one month later. There

was no meaningful delay or lack of due diligence. Sun quali-

fies for equitable tolling, and the BIA must act upon her appli-

cation for adjustment of status.

Petition GRANTED.