MacArio Bonilla v. Loretta E. Lynch

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MACARIO JESUS BONILLA, No. 12-73853

Petitioner,

Agency No.

v. A090-170-253

LORETTA E. LYNCH, Attorney

General, OPINION

Respondent.

On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted February 12, 2016

Pasadena, California

Filed July 12, 2016

Before: Marsha S. Berzon and John B. Owens, Circuit

Judges and Algenon L. Marbley,* District Judge.

Opinion by Judge Berzon

*

The Honorable Algenon L. Marbley, District Judge for the U.S.

District Court for the Southern District of Ohio, sitting by designation.

2 BONILLA V. LYNCH

SUMMARY**

Immigration

The panel granted in part and denied in part Macario

Jesus Bonilla’s petition for review of the Board of

Immigration Appeals’ decision denying his motion to reopen

deportation proceedings.

The panel held that Bonilla’s ineffective assistance of

counsel claim did not warrant equitable tolling of the

limitations period for his untimely-filed motion to reopen for

adjustment of status, and denied the petition for review on the

adjustment issue.

The panel held, however, that the BIA based its decision

declining to exercise its sua sponte authority to reopen on an

erroneous understanding of the legal principles concerning

the relationship between prior deportation, reopening of

deportation proceedings, and eligibility for INA § 212(c)

relief. The panel held that this court has jurisdiction to review

the BIA’s decision denying sua sponte reopening for the

limited purpose of reviewing the reasoning behind the

decision for legal or constitutional error. Holding that the

BIA’s decision was based on a legally erroneous premise, the

panel granted the petition, vacated, and remanded for the BIA

to exercise its broad discretionary authority as to sua sponte

reopening against the correct legal backdrop.

**

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

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

BONILLA V. LYNCH 3

COUNSEL

Stacy Tolchin (argued), Law Offices of Stacy Tolchin, Los

Angeles, California, for Petitioner.

Aric A. Anderson (argued), Trial Attorney; Emily Ann

Radford, Assistant Director; Stuart F. Delery, Assistant

Attorney General; United States Department of Justice, Civil

Division, Office of Immigration Litigation, Washington,

D.C.; for Respondent.

OPINION

BERZON, Circuit Judge:

Immigration law changes over time. New statutes are

enacted; agency interpretations change; new appellate and

Supreme Court decisions issue. Our questions concern how

those legal changes affect an individual ordered deported

from the United States when, as it turns out, the law

concerning the grounds for deportation, or for denial of relief

from deportation, changes after the individual is ordered

deported.

Here, Macario Jesus Bonilla, formerly a lawful permanent

resident of the United States, was deported to El Salvador in

1996 following a misdemeanor firearms conviction. He later

reentered the United States without inspection and, much

later, filed a motion to reopen, his second, on the ground that

his original lawyer did not properly advise him how to adjust

his status after he married a United States citizen. The motion

was untimely, but Bonilla argued he was entitled to equitable

tolling of the limitations period.

4 BONILLA V. LYNCH

After the Supreme Court announced a change in law that

placed in question the legality of the original deportation,

Bonilla supplemented his motion to reopen. The supplement

asked the Board of Immigration Appeals (“BIA” or “Board”)

to exercise its sua sponte authority to reopen his deportation

order to permit him to file for relief from deportation. The

Board denied both Bonilla’s motion and his request for sua

sponte reopening. Bonilla now petitions for review.

We conclude that Bonilla was not entitled to equitable

tolling and so deny review as to the adjustment of status

issue. But, in agreement with every circuit that has squarely

addressed the issue, we hold that we have authority to review

refusals to reopen sua sponte to the limited degree that the

refusal was based on legal error. Because we conclude the

Board’s decision in this case was based on a legally erroneous

premise, we grant the petition for review, vacate the Board’s

denial, and remand to the Board to exercise its broad

discretionary authority as to sua sponte reopening against the

correct legal backdrop.

I. BACKGROUND

Macario Jesus Bonilla is a native and citizen of El

Salvador. He entered the United States in 1981 and became

a lawful permanent resident in 1989.

In 1994, Bonilla was convicted of misdemeanor

possession of a concealed firearm in a motor vehicle and

placed in deportation proceedings. An Immigration Judge

(“IJ”) concluded that because Bonilla had been a lawful

permanent resident for fewer than seven years and had been

convicted of a firearms offense, he was ineligible for any

form of relief under the Immigration and Nationality Act of

BONILLA V. LYNCH 5

1950 (“INA”), including a waiver of inadmissibility under

former § 212(c).1 The IJ therefore ordered him deported.

Bonilla appealed the decision to the BIA, pro se. In

October 1995, the Board affirmed, on the ground that the

reason for Bonilla’s deportation—his firearms conviction—

precluded his eligibility for § 212(c) relief.

Bonilla married Ana Lilian Bonilla, a United States

citizen, in February 1996. At the time of the marriage, the

couple had an infant son, Jessie, also a United States citizen.

After the marriage, a notario advised Bonilla to surrender

himself and present his marriage certificate to immigration

officials. Bonilla did so, and was taken to the San Pedro

Detention Center.

While Bonilla was detained, his father and Ana met with

and retained Manuel Rivera, an immigration attorney, who

assured them he could get Bonilla out of detention and stop

his deportation. Ana asked Rivera if there were any forms she

or Bonilla should file; Rivera said no. On March 12, 1996,

Rivera filed with the Board a motion to reopen for adjustment

of status and a request for stay of deportation. He also filed an

application for a stay of deportation with the Immigration and

Naturalization Service (“INS”).

The Board and INS denied the stay requests, and Bonilla

was deported to El Salvador. Rivera then told Ana there was

1

Section 212(c), as interpreted by the BIA, “authorize[d] any permanent

resident alien with ‘a lawful unrelinquished domicile of seven consecutive

years’ to apply for a discretionary waiver from deportation.” INS v. St.

Cyr, 533 U.S. 289, 295 (2001) (citing Matter of Silva, 16 I. & N. Dec. 26,

30 (BIA 1976)).

6 BONILLA V. LYNCH

nothing more he could do. He never sent Bonilla or Ana any

copies of the documents he filed or received on Bonilla’s

behalf.

Shortly thereafter, the Board denied Bonilla’s motion to

reopen for adjustment of status. To have his status adjusted,

the Board explained, Bonilla had to (1) make an application

for adjustment of status; (2) have an immigrant visa

immediately available to him at the time of filing his

application; and (3) be eligible to receive a visa and be

admissible for permanent residence. Bonilla never filed an

application for adjustment of status (Form I-485), and an

immigrant visa petition (Form I-130) was never filed on his

behalf. As there was no indication in the record that Bonilla

could have had an immigrant visa immediately available to

him, the Board denied the motion to reopen.

Bonilla and Ana then retained another immigration

attorney, Philip Abramowitz. Abramowitz advised Ana to file

an immigrant visa petition on Bonilla’s behalf. She did so on

October 30, 1996; the petition was approved on June 2, 1997.

During the course of his representation, Abramowitz never

told Bonilla that the Board had denied his motion to reopen

in May 1996, nor that Rivera should have filed an immigrant

visa petition and an application for adjustment of status.

In May 1999, while in El Salvador, Bonilla was shot by

gang members. Soon after, he fled the country and reentered

the United States without inspection.

In 2002, Bonilla consulted a pro bono attorney at an

immigration workshop. He explained his case and showed her

all of the case-related documents he had. The attorney told

Bonilla there was nothing she could do to help him. He “had[]

BONILLA V. LYNCH 7

to wait a few years before [he] could seek legal assistance to

fix [his] immigration case,” she said.

Bonilla then waited six years to seek further legal

assistance. In 2008, Bonilla and Ana met with Eddie Bonilla

(no relation) at Servicio Latino Legal Offices. Eddie Bonilla

claimed to be a licensed immigration attorney but, it turned

out, was not—he was a notary unlawfully practicing law.

Eddie Bonilla reviewed Bonilla’s documents and told Bonilla

he had to wait another year before taking any action. In 2009,

Bonilla returned and retained Eddie Bonilla to represent him.

Eddie Bonilla filed with the Board a pro se motion to reopen

or reconsider the denial of appeal. The motion was denied.

Still pursuing her husband’s case, Ana consulted with

Stacy Tolchin, Bonilla’s current attorney, in the fall of 2011.

Unlike the lawyers and faux lawyer consulted earlier, Tolchin

obtained Bonilla’s immigration files from this court, and

informed Bonilla and Ana that the Board had denied

Bonilla’s first motion to reopen back in May 1996. She also

advised them that an immigrant visa petition should have

been filed before filing the motion to reopen, which Rivera

had not told them.

On December 1, 2011, Tolchin filed a motion to reopen

Bonilla’s 1995 deportation order based on ineffective

assistance of counsel. Shortly thereafter, the Supreme Court

decided Judulang v. Holder, 565 U.S. __, 132 S. Ct. 476

(2011). Judulang disapproved a BIA practice concerning the

granting of § 212(c) relief.2 Invoking the change of law

2

Before it was repealed in 1996, INA § 212(c) authorized the Attorney

General to grant relief to certain excludable aliens. By its terms, § 212(c)

did not apply to deportation proceedings. The Board nonetheless adopted

8 BONILLA V. LYNCH

announced in Judulang, Tolchin filed on Bonilla’s behalf a

supplement to his motion to reopen, asking the Board to

exercise its sua sponte jurisdiction and reopen his deportation

order so that he could apply for § 212(c) relief under

Judulang.

The Board denied Bonilla’s motion to reopen for

adjustment of status. It held that equitable tolling of the filing

period was not merited, as Bonilla did not demonstrate either

due diligence or prejudice. In addition, the Board declined to

exercise its sua sponte authority to reopen the deportation

proceedings. Bonilla timely filed a petition for review.

II. JURISDICTION AND STANDARD OF REVIEW

We have jurisdiction under 8 U.S.C. § 1252 to review the

Board’s denial of Bonilla’s motion to reopen for adjustment

of status. See Avagyan v. Holder, 646 F.3d 672, 674 (9th Cir.

2011). We review the Board’s denial of a motion to reopen

for abuse of discretion, but review purely legal questions de

a policy permitting aliens in deportation proceedings to apply for § 212(c)

relief. See St. Cyr, 533 U.S. at 295-96. To determine when an alien should

receive § 212(c) relief in the deportation context, the Board adopted a

comparable-grounds approach—that is, it considered “whether the ground

for deportation charged in a case has a close analogue in the statute’s list

of exclusion grounds.” Judulang, 132 S. Ct. at 481. If so, the alien could

seek § 212(c) relief. Using the comparable-grounds approach, the BIA

held that § 212(c) relief was unavailable in deportation proceedings based

on firearm convictions, because there was no comparable ground of

excludability. See, e.g., Matter of Gabryelsky, 20 I. & N. Dec. 750 (BIA

1993); Matter of Montenegro, 20 I. & N. Dec. 603 (BIA 1992). Holding

that the comparable-grounds approach was arbitrary and capricious,

Judulang overruled the BIA’s previous decisions barring § 212(c) relief

in deportation proceedings based on firearms convictions. 132 S. Ct. at

483.

BONILLA V. LYNCH 9

novo. See Iturribarria v. INS, 321 F.3d 889, 894 (9th Cir.

2003). “The BIA abuses its discretion when its decision is

arbitrary, irrational, or contrary to law.” Avagyan, 646 F.3d

at 678 (citation and internal quotation marks omitted).

The Supreme Court recently left open the question

“whether federal courts may review the Board’s decision not

to reopen removal proceedings sua sponte.” Kucana v.

Holder, 558 U.S. 233, 251 n.18 (2010). Before Kucana, we

had held that, generally, we lack jurisdiction to review denials

of sua sponte reopening. See Ekimian v. INS, 303 F.3d 1153,

1159 (9th Cir. 2002). But we have not specifically addressed

whether we have 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. Several circuits have held that courts of

appeal do have such limited jurisdiction. See, e.g., Salgado-

Toribio v. Holder, 713 F.3d 1267, 1271 (10th Cir. 2013);

Pllumi v. Attorney General, 642 F.3d 155, 160 (3d Cir. 2011);

Mahmood v. Holder, 570 F.3d 466, 469 (2d Cir. 2009). For

reasons explained in Part III.B, infra, we agree with those

decisions.

III. DISCUSSION

A. Motion to Reopen for Adjustment of Status Based on

Ineffective Assistance of Counsel

1. Ineffective Assistance of Counsel as a Basis for

Equitable Tolling

Generally, a motion to reopen must be filed “within 90

days of the date of entry of a final administrative order of

removal,” 8 U.S.C. § 1229a(c)(7)(C)(i), and an alien is

10 BONILLA V. LYNCH

limited to one such motion. Id. § 1229a(c)(7)(A). But,

because Bonilla’s final deportation order preceded the

imposition of the current time and number limitations on

motions to reopen, his motion to reopen was due by

September 30, 1996. See Executive Office for Immigration

Review; Motions and Appeals in Immigration Proceedings,

61 Fed. Reg. 18900-01 (Apr. 29, 1996). Bonilla did not file

the motion to reopen at issue in this case until December 1,

2011, more than fifteen years late.

Failure to meet the filing deadline is not fatal where

equitable tolling is available.3 “Ineffective assistance of

counsel is one basis for equitable tolling.” Singh v. Holder,

658 F.3d 879, 884 (9th Cir. 2011). Equitable tolling applies

in ineffective assistance of counsel cases because, “[a]lthough

there is no Sixth Amendment right to counsel in a deportation

proceeding, the due process guarantees of the Fifth

Amendment still must be afforded to an alien petitioner.”

Avagyan, 646 F.3d at 676–77 (citation omitted). Ineffective

assistance of counsel in a deportation proceeding denies an

alien petitioner his due process rights “if the proceeding was

so fundamentally unfair that the alien was prevented from

reasonably presenting his case.” Id. at 677 (citation omitted).

Erroneous legal advice that results in the petitioner failing to

file a timely motion to reopen is such a denial of due process.

Id. “Consequently, we ‘recognize[] equitable tolling of

deadlines and numerical limits on motions to reopen . . .

during periods when a petitioner is prevented from filing

because of [his attorney’s] deception, fraud, or error, as long

as the petitioner acts with due diligence in discovering the

3

It also is not fatal where the BIA decides to reopen proceedings on its

own authority, which it may do at any time. See 8 C.F.R. § 1003.2(a). We

address Bonilla’s motion to reopen sua sponte in Part III.B, infra.

BONILLA V. LYNCH 11

deception, fraud, or error.” Id. (quoting Iturribarria, 321 F.3d

at 897).

To determine whether a petitioner exercised due

diligence, we consider three factors: (1) “if (and when) a

reasonable person in petitioner’s position would suspect the

specific fraud or error underlying her motion to reopen”;

(2) “whether petitioner took reasonable steps to investigate

the [attorney’s] suspected fraud or error, or, if petitioner is

ignorant of counsel’s shortcomings, whether petitioner made

reasonable efforts to pursue relief”; and (3) “when the tolling

period should end; that is, when petitioner definitively learns

of the harm resulting from counsel’s deficiency.” Avagyan,

646 F.3d at 679 (citations omitted). The petitioner need not

“act with the maximum diligence possible—only due or

reasonable diligence.” Id. (internal quotation marks omitted).

Our review of the petitioner’s diligence is “fact-intensive and

case-specific, assessing the reasonableness of petitioner’s

actions in the context of his or her particular circumstances.”

Id.

2. Review of Bonilla’s Asserted Diligence

Bonilla argued in his motion to reopen for adjustment of

status that the Board should reopen its 1995 decision

affirming his order of deportation because his first attorney,

Manuel Rivera, and the notary posing as an attorney, Eddie

Bonilla, both provided ineffective assistance. Bonilla

acknowledged that the motion was filed many years past the

deadline for filing such motions, but contended that he had

demonstrated due diligence during, and therefore was entitled

to equitable tolling for, the years between 1996 and 2011.

12 BONILLA V. LYNCH

The Board disagreed, holding, inter alia, that Bonilla did

not act with due diligence, as there was a six year gap—

between 2002 and 2008—in his pursuit of legal advice. We

enforce the denial of the motion to reopen on this ground, and

so do not reach the Board’s other bases for denying the

motion to reopen. Assuming, therefore, that Bonilla was

indeed “ignorant of [his prior] counsel’s shortcomings” when

he consulted his present attorney in 2011, Avagyan, 646 F.3d

at 679, the question is whether Bonilla “made reasonable

efforts to pursue relief,” despite that six-year lapse. Id.

Bonilla explained that he did not seek any legal assistance

from 2002 to 2008 because he was following the 2002 advice

of the pro bono attorney he consulted at an immigration

workshop.4 That attorney told him to “wait a few years.”

Bonilla contends that it was reasonable for him to rely on the

immigration workshop attorney’s advice.

Taking into account the “particular circumstances,”

Avagyan, 646 F.3d at 679, we note, first, that Bonilla did give

the attorney what he thought to be the necessary information

about his case and had no reason to believe her advice

incorrect. But Bonilla appears to have had no meaningful or

sustained relationship with that attorney; he did not provide

her name, for example, nor any details about the immigration

workshop, such as its sponsoring organization or location.

Lacking any continuing connection to the lawyer or the

sponsoring organization, he could not, and did not, follow up

with her, nor she with him. Nor did Bonilla explain the basis

4

The Board did not find that the facts alleged in Bonilla’s declaration

are “inherently unbelievable,” so we accept them as true. Avagyan,

646 F.3d at 679 (quoting Ghahremani v. Gonzales, 498 F.3d 993, 999 (9th

Cir. 2007)).

BONILLA V. LYNCH 13

for the attorney’s recommendation to wait, perhaps because

she did not offer one, or because he did not understand or

remember what she said.

Most importantly, although the attorney advised Bonilla

to wait “a few years” to seek further legal help, she did not

advise him how long to wait. Because of the lack of any

ongoing relationship, she was in no position to contact him

when the appropriate time to seek relief had arrived and did

not do so.

In the end, Bonilla waited six years to take any further

action to negate the 1995 deportation order. He provides no

explanation for waiting that long.

Given the exceedingly long lapse of time before seeking

further legal advice, the lack of any continuing relationship or

follow up with the lawyer relied upon, and the general nature

of the advice offered, the BIA appropriately concluded that

Bonilla did not make “reasonable efforts to pursue relief,”

Avagyan, 646 F.3d at 679, and so did not demonstrate the

diligence necessary for equitable tolling.5

5

In his opening brief, Bonilla also maintained that it was futile to file a

motion to reopen until 2010, when this court ruled unlawful a “departure

bar” regulation providing that departure from the United States constituted

a withdrawal of a motion to reopen made previously. See Reyes-Torres v.

Holder, 645 F.3d 1073, 1075–76 (9th Cir. 2011); Coyt v. Holder, 593 F.3d

902, 906 (9th Cir. 2010). At oral argument on this appeal, Bonilla’s

attorney changed positions somewhat, arguing that filing would have been

futile only until 2007, citing Lin v. Gonzales, 473 F.3d 979 (9th Cir.

2007). Or. Arg. Tr. 21:10-21:30. Leaving aside which date is correct,

Bonilla did not raise this departure bar argument in any form to the BIA

as a ground for granting equitable tolling. As the issue was not exhausted,

we lack jurisdiction to consider it. See Alvarado v. Holder, 759 F.3d 1121,

1127 n.5 (9th Cir. 2014) (explaining that our court’s precedent “has

14 BONILLA V. LYNCH

We deny Bonilla’s petition for review as to the motion to

reopen for adjustment of status.

B. Motion to Reopen Sua Sponte

After the Supreme Court rejected the comparable-grounds

approach in Judulang, see note 2, supra, Bonilla asked the

Board to exercise its sua sponte authority to reopen his 1995

deportation order so that he could now apply for § 212(c)

relief, as Judulang would allow. The Board denied the

request. Maintaining that the Board’s denial of sua sponte

reopening rested on an erroneous legal premise, Bonilla asks

that we correct the error and vacate the Board’s denial of sua

sponte relief.

We conclude that we do have jurisdiction to review the

Board’s decision so as to assure that the Board made its

discretionary decision on the correct understanding of the

applicable legal principles. As the Board premised its

decision on an erroneous understanding of the legal principles

concerning the relationship between prior deportation,

reopening of deportation proceedings, and eligibility for

§ 212(c) relief, we will grant the petition and return the case

to the Board for further consideration.

1. Origins of the Board’s Sua Sponte Reopening

Authority

We begin our consideration of the jurisdictional question

before us by revisiting some history of the concept of

reopening.

squarely held that issue exhaustion is a jurisdictional requirement”).

BONILLA V. LYNCH 15

Originally, in the immigration context, “reopening [was]

a judicial creation . . . .” Dada v. Mukasey, 554 U.S. 1, 12

(2008) (citing federal court cases reviewing administrative

decisions denying motions to reopen removal proceedings

from the early 1900s). In 1958, the year the BIA was

established, “the Attorney General promulgated a rule for the

reopening and reconsideration of removal proceedings . . . .”

Id. at 13 (citing 23 Fed. Reg. 9115, 9118–9119 (1958), final

rule codified at 8 C.F.R. § 3.2 (1959)).

Today, the Board’s authority to grant or deny a motion to

reopen is still found in a regulation, 8 C.F.R. § 1003.2(a),

which closely follows the 1958 version. Dada, 554 U.S. at 13.

The current regulation provides:

The Board may at any time reopen or

reconsider on its own motion any case in

which it has rendered a decision. . . . The

decision to grant or deny a motion to reopen

or reconsider is within the discretion of the

Board, subject to the restrictions of this

section. The Board has discretion to deny a

motion to reopen even if the party moving has

made out a prima facie case for relief.

8 C.F.R. § 1003.2(a).

Until 1996, there was no time limit for requesting

reopening. Dada, 554 U.S. at 13. In 1990, Congress, “fearful

that deportable or excludable aliens were trying to prolong

their stays in the U.S. by filing one type of discretionary relief

. . . after another in immigration proceedings,” ordered the

Attorney General to issue regulations limiting the number of

motions and setting a maximum time period within which to

16 BONILLA V. LYNCH

file them. Id. (citation and internal alterations omitted).

Although “[t]he Attorney General found little evidence of

abuse,” Congress did not rescind or adjust its request. Id. So,

in 1996, the Department of Justice issued a regulation

imposing time limits and filing restrictions. Id. (citing

Executive Office for Immigration Review; Motions and

Appeals in Immigration Proceedings, 61 Fed. Reg. 18900,

18901, 18905 (1996)). Congress then codified those rules in

the Illegal Immigration Reform and Responsibility Act of

1996 (“IIRIRA”). Id. at 14.

“IIRIRA provided the first statutory right to a motion to

reopen . . . .” Meza-Vallejos v. Holder, 669 F.3d 920, 924 (9th

Cir. 2012) (citing 8 U.S.C. § 1229a(c)(7)). With certain

narrow exceptions, IIRIRA limited an alien to one motion to

reopen, to be filed within 90 days of the date of entry of a

final administrative order of removal. 8 U.S.C.

§§ 1229a(c)(7)(A), (c)(7)(C)(i). IIRIRA thus “transform[ed]

the motion to reopen from a regulatory procedure to a

statutory form of relief available to the alien.” Kucana,

558 U.S. at 249 (alteration in original) (quoting Dada,

554 U.S. at 14).

Notwithstanding the statutory provisions that now provide

the contours of the reopening process, Congress never

codified the regulation specifically authorizing the Board to

grant or deny a motion to reopen or reconsider. Kucana,

558 U.S. at 249. The regulation codified at 8 C.F.R.

§ 1003.2(a) thus remains the sole enunciation of the reach of

that power. Id. at 249–50.

Since the enactment of IIRIRA, where the timing and

numerosity statutory requirements are not met and equitable

tolling is unavailable, the only way an alien can reopen an

BONILLA V. LYNCH 17

adverse final order of removal is to ask the Board to exercise

its sua sponte authority—that is, to reopen the case “on its

own motion.” 8 C.F.R. § 1003.2(a); see also In re J-J-, 21 I.

& N. Dec. 976, 984, Interim Decision 3323 (BIA 1997)

(discussing the Board’s “limited discretionary powers under

the regulations to reopen or reconsider cases on [its] own

motion”). Neither the authorizing regulation, 8 C.F.R.

§ 1003.2(a), nor IIRIRA’s statutory provisions supply a

standard for the Board to apply when deciding whether to

grant or deny a motion to reopen sua sponte.

The Board has, however, articulated some general

parameters for the exercise of its sua sponte powers. It has

cautioned that its sua sponte power to reopen “is not meant to

be used as a general cure for filing defects or to otherwise

circumvent the regulations, where enforcing them might

result in hardship.” In re J-J-, 21 I. & N. Dec. at 984. Rather,

the Board “must be persuaded that the respondent’s situation

is truly exceptional before [it] will intervene.” In re G-D-,

22 I. & N. Dec. 1132, 1134 (BIA 1999). For example, “sua

sponte action by the Board is appropriate” where there has

been “a fundamental change in the law” that represents “a

departure from established principles.” Id. at 1135.

Importantly, however, the Board is not required—by

regulation or its own decisions—to reopen proceedings sua

sponte in exceptional situations. Ekimian, 303 F.3d at 1158.

2. Jurisdiction to Review the Board’s Decision to Deny

a Motion to Reopen Sua Sponte

Ekimian held that we ordinarily lack jurisdiction to review

a Board decision denying sua sponte reopening, as the

breadth and generality of the “truly exceptional situations”

locution, In re G-D-, 22 I. & N. Dec. at 1134, provides no

18 BONILLA V. LYNCH

judicially manageable standard with which to do so. Ekimian,

303 F.3d at 1159.

The Board had denied the Ekimians’ motion to reopen

sua sponte because it did “not find sufficient grounds . . . to

warrant” doing so. Id. at 1157. The Ekimians then petitioned

for review, arguing that because the Board had stated that it

could reopen proceedings sua sponte “in exceptional

situations,” id. (quoting In re J-J-, 21 I. & N. Dec. at 984),

this court had “jurisdiction to review the BIA’s determination

that ‘exceptional situations’ do not exist” for abuse of

discretion. Id. We rejected that argument. Id. at 1159.

In doing so, we “[took] some guidance from” Heckler v.

Chaney, 470 U.S. 821 (1985), which considered the

provisions for judicial review of agency actions set out in the

Administrative Procedure Act. Ekimian, 303 F.3d at 1158. In

particular, 5 U.S.C. § 701(a)(2) provides that the chapter on

judicial review does not apply when an “agency action is

committed to agency discretion by law.” Heckler explained

that, under § 701(a)(2), “even where Congress has not

affirmatively precluded review, review is not to be had if the

statute is drawn so that a court would have no meaningful

standard against which to judge the agency’s exercise of

discretion.” Heckler, 470 U.S. at 830. This exception to

judicial review is “very narrow,” and applies “in those rare

instances where statutes are drawn in such broad terms that in

a given case there is no law to apply.” Id. (quoting Citizens to

Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 410

(1971)) (internal quotation marks omitted). Drawing on

Heckler, Ekimian explained that the Ekimians “[could not]

point to any statutory, regulatory, or case law definition of

‘exceptional circumstances’ applicable to the BIA’s sua

sponte power under § 3.2(a),” and so rejected the argument

BONILLA V. LYNCH 19

that “exceptional situations” was a meaningful judicial

standard for reviewing the Board’s discretion. 303 F.3d at

1159. “Because we [could not] discover a sufficiently

meaningful standard against which to judge the BIA’s

decision not to reopen” sua sponte, Ekimian held, “we do not

have jurisdiction to review the BIA’s refusal to reopen

deportation proceedings sua sponte.” Id. at 1159–60.

Ekimian’s holding that the “exceptional situation”

benchmark does not provide a sufficiently meaningful

standard to permit judicial review remains good law. This

court has relied on or approvingly cited Ekimian in fifteen

published opinions.6 But neither Ekimian nor any of the later

cases considered the question presented here: whether

appellate courts have jurisdiction to review the Board’s denial

of a motion to reopen sua sponte for the limited purpose of

identifying legal or constitutional error.

Neither the immigration statute nor any regulation

expressly precludes judicial review of motions to reopen,

whether sua sponte or otherwise. Absent any such

proscription, there is a “presumption favoring interpretations

6

See Bear Valley Mut. Water Co. v. Jewell, 790 F.3d 977, 990 (9th Cir.

2015); Carrillo v. Holder, 781 F.3d 1155, 1160 n.11 (9th Cir. 2015);

Singh v. Holder, 771 F.3d 647, 650 (9th Cir. 2014); Mejia-Hernandez v.

Holder, 633 F.3d 818, 824 (9th Cir. 2011); Pinnacle Armor, Inc. v. United

States, 648 F.3d 708, 720 (9th Cir. 2011); Sharma v. Holder, 633 F.3d

865, 874 (9th Cir. 2011); Singh v. Holder, 658 F.3d at 884 n.6; Diaz-

Covarrubias v. Mukasey, 551 F.3d 1114, 1117-18 (9th Cir. 2009);

Minasyan v. Mukasey, 553 F.3d 1224, 1229 (9th Cir. 2009); Toufighi v.

Mukasey, 538 F.3d 988, 993 n.8 (9th Cir. 2007); Malty v. Ashcroft,

381 F.3d 943, 945 n.1 (9th Cir. 2004); Guzman v. INS, 318 F.3d 911, 914

n.4 (9th Cir. 2003); Mendez-Gutierrez v. Ashcroft, 340 F.3d 865, 868 (9th

Cir. 2003); Ramirez-Perez v. Ashcroft, 336 F.3d 1001, 1005 n.15 (9th Cir.

2003); Abassi v. INS, 305 F.3d 1028, 1032 (9th Cir. 2002).

20 BONILLA V. LYNCH

of statutes [to] allow judicial review of administrative

action.” Kucana, 558 U.S. at 237 (alterations in original)

(quoting Reno v. Catholic Soc. Servs., Inc., 509 U.S. 43, 64

(1993)); see also Gutierrez de Martinez v. Lamagno, 515 U.S.

417, 434 (1995) (“executive determinations generally are

subject to judicial review”). That presumption is “well-

settled,” Kucana, 558 U.S. at 252 (quoting Catholic Soc.

Servs., 509 U.S. at 63), and particularly important where legal

and constitutional questions are at issue.

For example, IIRIRA stripped courts of jurisdiction to

review most discretionary decisions or actions of the Attorney

General and Secretary of Homeland Security, the authority

for which was specified under a particular statutory

subchapter. See 8 U.S.C. § 1252(a)(2)(B)(ii). The REAL ID

Act of 2005 clarified, however, that courts were not

precluded from reviewing “constitutional claims or questions

of law raised upon a petition for review.” Id. § 1252(a)(2)(D).

The recognition in § 1252(a)(2)(D) that legal or constitutional

issues are reviewable even when the statute makes the

underlying decision discretionary is reflective of a general

recognition that there is no preclusion of such review if

otherwise ordinarily available. Indeed, our court held that we

retained jurisdiction over legal and constitutional questions

raised regarding BIA discretionary decisions even before

Congress so stated in the REAL ID Act, further confirming

the strength of the presumption of reviewability. See, e.g.,

Romero-Torres v. Ashcroft, 327 F.3d 887, 890 (9th Cir. 2003)

(explaining that IIRIRA did not eliminate our jurisdiction

over purely legal questions) (citing Molina-Estrada v. INS,

293 F.3d 1089, 1093–94 (9th Cir. 2002); Montero-Martinez

v. Ashcroft, 277 F.3d 1137, 1144 (9th Cir. 2002)); Torres-

Aguilar v. INS, 246 F.3d 1267, 1270–71 (9th Cir. 2001)

BONILLA V. LYNCH 21

(holding that we had jurisdiction to review a BIA decision for

the denial of due process).

Our recent decision in Singh v. Holder, 771 F.3d 647 (9th

Cir. 2014), confirms that we may review denials of sua

sponte reopening where, unlike in Ekimian and similar cases,

there is “law to apply” in doing so. Singh argued in his

petition for review that the Board abused its discretion when

it erroneously concluded that it lacked authority under

8 C.F.R. § 1003.2(a) to reopen his exclusion proceedings so

that he could pursue an adjustment of status application.

Singh, 771 F.3d at 650. We concluded that “Ekimian [did] not

preclude our jurisdiction.” Id. The jurisdictional bar

announced in Ekimian, we explained, “rests on the absence of

a judicially manageable standard for us to evaluate the BIA’s

exercise of discretion in ruling on a motion to reopen.” Id. In

Singh, however, the BIA did not “deny[] a motion to reopen

as an exercise of discretion”; it “conclude[d] that it lack[ed]

the authority to reopen.” Id.

Singh held that the Board’s conclusion as to its lack of

authority was contrary to plain statutory language and our

court’s precedents, and thus was “legal error.”7 Id. at 653.

7

Specifically, the Board denied Singh’s motion to reopen in reliance on

Matter of Yauri, 25 I. & N. Dec. 103 (BIA 2009). Matter of Yauri

involved an arriving alien who filed with the BIA a motion to reopen sua

sponte her removal proceedings and then continue them indefinitely to

permit her to pursue an adjustment of status application before United

States Citizenship and Immigration Services (“USCIS”). 25 I. & N. Dec.

at 103-04. The Board denied Yauri’s motion to reopen. It noted that

because Yauri was an arriving alien, USCIS, not the BIA, had jurisdiction

over her adjustment application. Id. at 107. It then reasoned that Yauri

effectively was seeking a stay of removal pending adjudication of her

adjustment application; considered whether it had authority to issue a stay,

22 BONILLA V. LYNCH

Singh then granted the petition for review and remanded the

case to the Board for an exercise of its discretion—that is, for

a decision whether there were truly exceptional

circumstances, a decision that remains unreviewable under

Ekimian. Id. Singh thus limited our review to the Board’s

legal conclusion—that, because of legal preclusion, it could

not exercise its discretion.

There is little distinction as to judicial reviewability

between the situation in Singh and the circumstances here.

Bonilla’s contention, upon which we elaborate below, is that

the Board misunderstood the parameters of § 212(c) relief as

applied to a legal permanent resident who had been deported

and, based on that misunderstanding, concluded that it would

not exercise its sua sponte authority to reopen because it

would, in the end, lack the legal authority to grant the relief

requested. Just as in Singh, there is “law to apply” in

reviewing that question—here, the substantive law governing

§ 212(c) relief when there has been a deportation of a lawful

permanent resident. Reviewing that legal question will simply

rather than asking whether it had authority to reopen and continue Yauri’s

proceedings; and concluded that it lacked such authority. Id. at 108-10.

“We decline[d] to follow Yauri” because its interpretation of 8 C.F.R.

§ 1003.2(a) was “contrary to the plain language of the regulation.” Singh,

771 F.3d at 652. Because § 1003.2(a) “plainly and unambiguously states

that ‘[t]he Board may at any time open or reconsider on its motion any

case in which it has rendered a decision,” we explained, the Board in fact

did have authority to reopen Singh’s proceedings under § 1003.2(a). Id.

(alteration in original). We then further explained that the Board’s

conclusion that it lacked the authority to reopen Singh’s case was contrary

to our case law holding that the Board had jurisdiction to grant a motion

to reopen to provide time for USCIS to adjudicate a pending adjustment

application. Id. (citing Kalilu v. Mukasey, 548 F.3d 1215, 1218 (9th Cir.

2008)).

BONILLA V. LYNCH 23

assure that the Board’s decision whether there is a “truly

exceptional situation” meriting sua sponte relief is made on

a proper understanding of the underlying law.

We therefore conclude that, as in Singh, this court has

jurisdiction to review Board decisions denying sua sponte

reopening for the limited purpose of reviewing the reasoning

behind the decisions for legal or constitutional error. If, upon

exercise of its jurisdiction, this court concludes that the Board

relied on an incorrect legal premise, it should “remand to the

BIA so it may exercise its authority against the correct ‘legal

background.’” Pllumi, 642 F.3d at 160 (quoting Mahmood,

570 F.3d at 469). Once it does so, this court will have no

jurisdiction to review the sua sponte decision, as Ekimian

instructs.

In so ruling, we join three other circuits—the Second,

Third, and Tenth.8 See Salgado-Toribio, 713 F.3d at 1271;

Pllumi, 642 F.3d at 160 (“[W]hen presented with a BIA

decision rejecting a motion for sua sponte reopening, we may

exercise jurisdiction to the limited extent of recognizing when

the BIA has relied on an incorrect legal premise.”);

Mahmood, 570 F.3d at 469 (“[W]here the Agency may have

8

We note that the government’s brief did not address the judicial review

question we here address. And, at oral argument, the government’s

attorney did not answer the court’s inquiry as to the propriety of the

position adopted by the other circuits on the limited reviewability of

denials of sua sponte reopening. The lawyer maintained that he was not

“authorized” to take a position on the issue. Or. Arg. at 13:06-13:50. Such

reticence is unacceptable. Where an important issue is directly raised by

the opposing party and, on one view of the record at least, is necessary to

decide to reach a reasoned conclusion, we rely on attorneys appearing in

our court, including attorneys for the government, to assist us in analyzing

and evaluating the issues properly before us.

24 BONILLA V. LYNCH

declined to exercise its sua sponte authority because it

misperceived the legal background and thought, incorrectly,

that a reopening would necessarily fail, remand to the Agency

for reconsideration in view of the correct law is

appropriate.”); see also Anaya-Aguilar v. Holder, 697 F.3d

1189, 1190 (7th Cir. 2012) (“[W]e do not mean to foreclose

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

in cases where a petitioner has a plausible constitutional or

legal claim that the Board misapplied a legal or constitutional

standard.”). To our knowledge, no circuit squarely presented

with this issue has held to the contrary.9

3. Application of Jurisdiction to the Board’s Denial of

Bonilla’s Motion to Reopen Sua Sponte

We turn to the limited legal question over which we do

have jurisdiction—was the Board’s denial of Bonilla’s

motion to reopen sua sponte premised on an erroneous legal

understanding?

Bonilla contends that the Board refused to grant his

motion for sua sponte reopening despite the substantial

change in the law worked by Judulang because it believed,

incorrectly, that Bonilla had lost his lawful permanent

resident status when he was deported and, even if reopening

were granted, could not regain it. As a consequence, posits

Bonilla, the Board believed he could never have sufficient

lawful presence to become eligible for § 212(c) relief,

because he had accrued fewer than seven years of lawful

9

The Eighth Circuit has expressed some skepticism about the holdings

in Pllumi and Mahmood. See Barajas-Salinas v. Holder, 760 F.3d 905,

908 n.* (8th Cir. 2014).

BONILLA V. LYNCH 25

domicile in the United States at the time the Board issued its

final order of deportation. See 8 U.S.C. § 1182(c) (1996).

We agree with Bonilla that any such conclusion about the

irrevocable loss of lawful permanent resident status would be

legally incorrect. Generally, an alien’s lawful permanent

resident status ends upon entry of a final administrative order

of deportation. Matter of Lok, 18 I. & N. Dec. 101, 105 (BIA

1981). But if the BIA grants a motion to reopen, or a

reviewing court holds that the BIA should have granted a

motion to reopen, the final deportation order is vacated—that

is, it is as if it never occurred. Nken v. Holder, 556 U.S. 418,

429 n.1 (2009); see also Plasencia-Ayala v. Mukasey,

516 F.3d 738, 745 (9th Cir. 2008) (explaining that “[s]everal

courts of appeals, including” the Ninth Circuit, “have held

that a grant of a motion to reopen vacates the final order of

deportation”), overruled on other grounds by Marmolejo-

Campos v. Holder, 558 F.3d 903 (9th Cir. 2009) (en banc).

The previously terminated immigration proceedings thus are

reinstated, and the alien is restored to his prior status. See

U.S. Immigration and Customs Enforcement, Facilitating the

Return to the United States of Certain Lawfully Removed

Aliens 2 (2012), https://www.ice.gov/doclib/foia/dro_polic

y_memos/11061.1_current_policy_facilitating_return.pdf

(“[W]hen a PFR is granted that returns a former LPR to the

posture of a pre-order alien, the alien will once again, in

contemplation of law, be an LPR even though removal

proceedings may still be pending before EOIR on remand

from the circuit court.”).10 Here, were the Board to grant

10

See also Contreras-Bocanegra v. Holder, 678 F.3d 811, 818-19 (10th

Cir. 2012) (en banc) (“When the Board grants a motion to reopen, this

action vacates the underlying removal order and restores the noncitizen to

her prior status.”); Bronisz v. Ashcroft, 378 F.3d 632, 637 (7th Cir. 2004)

26 BONILLA V. LYNCH

Bonilla’s motion to reopen sua sponte, his previous

deportation proceedings would be reinstated and he would be

restored to his prior status as a lawful permanent resident,

unless and until the new proceedings result in a removal

order.

In Bonilla’s case, restoration of his lawful permanent

resident status could result in acquisition of seven years of

unrelinquished lawful domicile. Bonilla was admitted as a

lawful permanent resident on February 28, 1989. The BIA

issued its final order of deportation on October 17, 1995,

which stopped the clock four months short of the necessary

seven years. See, e.g., Foroughi v. INS, 60 F.3d 570, 575 (9th

Cir. 1995) (“When an order of deportation is administratively

final, it ends the accrual of lawful permanent residence

time.”). But Bonilla was not deported to El Salvador until

March 13, 1996. Thus, if his lawful permanent resident status

were restored, he would have accrued unrelinquished lawful

domicile from February 28, 1989, to March 13, 1996, a

period of just over seven years.

The Government did not engage with the merits of the

alleged legal error in its brief or at oral argument. Instead, it

maintained that the Board did not make the ruling of law

Bonilla attributes to it. We disagree.

(“[T]he grant of a motion to reopen vacates the previous order of

deportation or removal and reinstates the previously terminated

immigration proceedings.”) (drawing on Lopez-Ruiz v. Ashcroft, 298 F.3d

886, 887 (9th Cir. 2002)); Henry v. INS, 8 F.3d 426, 435 (7th Cir. 1993)

(“[I]f a petition for review were granted, the alien’s lawful permanent

resident status would be restored and the alien would then continue to

accumulate time toward the seven-year residency requirement [for

§ 212(c) relief].”).

BONILLA V. LYNCH 27

Bonilla had specifically addressed whether he had the

requisite time and status for § 212(c) relief in his reply brief

to the Board.11 He explained how he could satisfy the

requirement, arguing that (1) “[i]f his case is reopened by the

Board, then Respondent would be restored back to the status

of a lawful permanent resident,” and (2) as a lawful

permanent resident from the time of entry until he was

deported, he would have been lawfully domiciled for more

than seven years.12

The relevant portion of the Board’s decision reads:

The respondent was not eligible for either a

waiver of inadmissibility or adjustment of

status at the time a final order had been

entered by the Board on October 17, 1995, or

within the time period to file a timely motion

to reopen, or on or before September 30,

11

At the end of its discussion of Bonilla’s eligibility for § 212(c) relief,

after having ruled that he had lost his permanent resident status before he

had accrued seven years of lawful residency, the Board stated that Bonilla

had not “addressed the effect of his deportation” on his ability to meet the

unrelinquished lawful domicile requirement. The Board could not have

meant that Bonilla had waived the issue of the impact of his deportation

on his period as a lawful permanent resident, as he did raise and discuss

it. And, as recounted in the text, the Board ruled on the merits of the

matter. So the Board’s comment on Bonilla’s briefing was simply that

Bonilla’s explanation was insufficient, given the Board’s understanding

of the pertinent law. It is that legal understanding that we hold to be in

error.

12

Bonilla’s reply brief contained a factual error: it stated he was

deported on May 30, 1996, but he actually was deported on March 13,

1996. The error is irrelevant to Bonilla’s reasoning, and does not change

the ultimate conclusion that he satisfied the seven-year requirement.

28 BONILLA V. LYNCH

1996. Under the controlling authority at that

time, the respondent was not eligible for a

waiver of inadmissibility under former section

212(c) of the Act due to his firearms

conviction. . . . Moreover, the respondent’s

lawful permanent resident status terminated

upon the entry of the final administrative

order by the Board, and he no longer accrued

lawful domicile. Matter of Lok, 18 I&N Dec.

101 (BIA 1981). . . .

Based on the totality of the circumstances

presented in this case, and the arguments

raised in the motion and its supplements, we

conclude that sua sponte reopening of the

respondent’s deportation proceedings is

inappropriate. The respondent lost his lawful

permanent resident status upon this Board’s

entry of a final order on October 17, 1995. See

Matter of Lok, supra. The final deportation

order was lawfully executed on March 13,

1996, and the respondent returned to El

Salvador. His deportation “is a transformative

event that fundamentally alters the alien’s

posture under the law.” Matter of

Armendarez, 24 I&N Dec. 646, 656 (BIA

2009). Despite the change in law set forth in

Judulang v. Holder, supra, we do not find that

proceedings should be reopened. The

respondent has not addressed the effect of his

deportation on his current eligibility for a

212(c) waiver (whether he can meet the

lawful unrelinquished domicile requirement)

....

BONILLA V. LYNCH 29

We are persuaded that the Board based its decision on the

asserted legal error. Quoting Matter of Armendarez, 24 I. &

N. Dec. 646, 656 (BIA 2009), the Board characterized

Bonilla’s deportation as “a transformative event that

fundamentally alters the alien’s posture under the law.” And

the Board twice stated that Bonilla’s lawful permanent

resident status terminated upon the Board’s entry of a final

order of deportation on October 17, 1995, and definitively

held that Bonilla therefore “no longer accrued lawful

domicile.” We see no way to understand these statements

other than as a ruling that Bonilla had permanently lost his

legal status and so could not meet the § 212(c) lawful

domicile accrual requirements, even if his firearms conviction

were not a barrier to relief, and even if reopening were

granted on that basis.

In sum, the Board ruled on the premise that, because his

deportation was a “transformative event,” Bonilla’s lawful

permanent resident status would not be restored were the

Board to reopen his deportation proceedings, and so Bonilla

would be short of the requisite unrelinquished lawful

domicile needed for § 212(c) relief. That legal ruling is

incorrect, as we have explained. In fact, were reopening

granted because of Judulang, Bonilla’s lawful permanent

resident status would be restored as if it had never lapsed, and

he would have been lawfully present at least until his original

deportation, a period of (just) more than seven years.

The Board must therefore revisit its sua sponte reopening

decision on a proper understanding of its authority to grant

Bonilla relief if reopening is granted. If, on remand, the

Board again declines to exercise its sua sponte authority to

reopen, and does so without relying on a constitutionally or

legally erroneous premise, its decision will not be reviewable.

30 BONILLA V. LYNCH

CONCLUSION

For the foregoing reasons, we deny Bonilla’s petition for

review as to his motion to reopen for adjustment of status and

the equitable tolling question. We exercise jurisdiction over

Bonilla’s petition for review as to his motion to reopen sua

sponte for the sole purpose of considering whether the Board

based its decision on a legal error. Because we conclude it did

so, we vacate and remand to the Board to exercise its

discretion against the correct legal framework.

GRANTED IN PART, VACATED, AND

REMANDED, AND DENIED IN PART.

The parties shall bear their own costs.