Mohamed Abbas v. Merrick Garland ( 2023 )


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  •                               NOT FOR PUBLICATION                        FILED
    UNITED STATES COURT OF APPEALS                        JAN 23 2023
    MOLLY C. DWYER, CLERK
    U.S. COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    MOHAMED KAMAL ELDIN ABBAS,                      No.    19-71664
    Petitioner,                     Agency No. A096-684-420
    v.
    MEMORANDUM*
    MERRICK B. GARLAND, Attorney
    General,
    Respondent.
    On Petition for Review of an Order of the
    Board of Immigration Appeals
    Argued and Submitted November 18, 2022
    San Francisco, California
    Before: TASHIMA and PAEZ, Circuit Judges, and SESSIONS,** District Judge.
    *
    This disposition is not appropriate for publication and is not precedent
    except as provided by Ninth Circuit Rule 36-3.
    **
    The Honorable William K. Sessions III, United States District Judge
    for the District of Vermont, sitting by designation.
    Mohamed Kamal Eldin Abbas (“Abbas”), a native and citizen of Egypt,
    petitions for review of a decision by the Board of Immigration Appeals (“BIA”)
    denying his motions to reconsider and to reopen removal proceedings. We review
    the denial of a motion to reopen and a motion to reconsider for abuse of discretion.
    See Cano-Merida v. INS, 
    311 F.3d 960
    , 964 (9th Cir. 2002). We review the
    agency’s factual findings for substantial evidence. See Hernandez-Ortiz v.
    Garland, 
    32 F.4th 794
    , 800 (9th Cir. 2022). We have jurisdiction under 
    8 U.S.C. § 1252
    . We grant the petition and remand for further proceedings consistent with
    this disposition.
    Abbas first argues that a defective Notice to Appear (“NTA”) deprived the
    immigration court of jurisdiction over his removal proceedings. Our recent
    decision in United States v. Bastide-Hernandez forecloses this argument, and we
    therefore reject it. 
    39 F.4th 1187
    , 1188, 1192–93 (9th Cir. 2022) (en banc) (holding
    that a defective NTA does not deprive the immigration court of subject matter
    jurisdiction).
    Abbas’s motion to reopen was untimely and number-barred, see 
    8 C.F.R. § 1003.2
    (c)(2), and his motion to reconsider was untimely, see 
    8 C.F.R. § 1003.2
    (b)(2). He has advanced two theories for overcoming these procedural
    bars. First, he seeks application of an exception to the bars based on changed
    country conditions relevant to his claims for asylum, withholding, and CAT relief,
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    see 
    8 C.F.R. § 1003.2
    (c)(3)(ii), and claims the BIA abused its discretion by failing
    to review his evidence. The BIA decision included only a cursory
    acknowledgement of the country conditions evidence rather than a substantive
    analysis. This error was harmless, however, because the record does not establish
    that there has been a material change in country conditions since Abbas’s initial
    proceedings. See Malty v. Ashcroft, 
    381 F.3d 942
    , 945 (9th Cir. 2004).
    Separately, Abbas argued in his motion to reopen that equitable tolling of the
    time and number bars was warranted due to a change in law that made him newly
    eligible to apply for cancellation of removal. The time and number bars applicable
    to motions to reopen and reconsider are subject to equitable tolling. Perez-
    Camacho v. Garland, 
    42 F.4th 1103
    , 1110 (9th Cir. 2022) (a noncitizen “can
    secure review of a motion to reopen that would otherwise be time-and number-
    barred if the deadline is subject to equitable tolling”). For equitable tolling to
    apply, a petitioner must show “(1) that he has been pursuing his rights diligently,
    and (2) that some extraordinary circumstances stood in his way and prevented
    timely filing.” Holland v. Florida, 
    560 U.S. 631
    , 632 (2010). A change in law is an
    extraordinary circumstance that warrants tolling of a noncitizen’s deadline to apply
    for relief. See Lona v. Barr, 
    958 F.3d 1225
    , 1230–31 (9th Cir. 2020).
    The BIA failed to analyze Abbas’s argument for equitable tolling based on
    this change in law in its decision. The record establishes that Abbas is entitled to
    3
    equitable tolling with respect to this claim. In 2018, the Supreme Court held that
    “[a] putative notice to appear that fails to designate the specific time or place of the
    noncitizen’s removal proceedings is not a ‘notice to appear under section 1229(a),’
    and so does not trigger the stop-time rule.” Pereira v. Sessions, 
    138 S. Ct. 2105
    ,
    2113–14 (2018) (quoting 8 U.S.C. § 1229b(d)(1)). The NTA in Abbas’s case did
    not specify the date or time for Abbas’s appearance as required by statute. Abbas
    therefore moved for reconsideration and reopening within one month of the
    Pereira decision, as he had accrued the necessary period of physical presence since
    receiving the deficient NTA. The record also indicates that Abbas vigorously
    pursued his rights prior to Pereira. His actions were diligent, Pereira constituted
    an extraordinary circumstance, and equitable tolling applies.
    The BIA allowed for the possibility that the motion was not barred but
    concluded that Abbas’s cancellation of removal claim nonetheless failed because
    Abbas had stopped accruing continuous physical presence when the Immigration
    Judge (“IJ”) entered an order of removal in 2012. A final removal order, however,
    does not trigger the stop-time rule. Quebrado Cantor v. Garland, 
    17 F.4th 869
    , 870
    (9th Cir. 2021). This basis for denial is thus contrary to law. Under Pereira and
    Quebrado Cantor, the record does not reflect any event that would have stopped
    the accrual of qualifying time since Abbas entered the United States in 2003. See
    also Niz-Chavez v. Garland, 
    141 S. Ct. 1474
    , 1485 (2021) (holding that a
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    supplemental notice informing the noncitizen of the time and place of a hearing
    does not trigger the stop-time rule). Accordingly, Abbas has accrued more than the
    ten years of continuous physical presence required by the statute. 8 U.S.C.
    § 1229b(b)(1)(A).
    The BIA also found, without discussion, that Abbas’s evidence was
    insufficient to warrant a favorable exercise of discretion given that the IJ denied
    Abbas’s claim for adjustment of status as a matter of discretion in 2011. Because
    the BIA’s conclusion was arbitrary and not supported by substantial evidence, it
    abused its discretion. Abbas’s cancellation application, which he properly attached
    to his motion to reopen, shows that his mother’s health has declined significantly
    since 2011. The other findings that formed the basis for the IJ’s negative
    determination in 2011, such as the recency of Abbas’s criminal conduct, are
    similarly outdated given the passage of time, the intervening change in the legal
    classification of Abbas’s sole conviction, and his securing of state post-conviction
    relief. See 8 U.S.C. § 1229b(b)(1)(B)-(C). The BIA’s failure to analyze any such
    facts was an abuse of discretion as the agency did not provide a reasoned
    explanation for its decision. See Movsisian v. Ashcroft, 
    395 F.3d 1095
    , 1098 (9th
    Cir. 2005) (“We have long held that the BIA abuses its discretion when it fails to
    provide a reasoned explanation for its actions.”). The record contains compelling
    evidence of Abbas’s changed equities since 2011 that supports a favorable
    5
    discretionary determination, and the BIA was required to consider this evidence.
    On this record, Abbas has submitted sufficient evidence to warrant the
    application of equitable tolling. He has also established that he is prima facie
    eligible for cancellation of removal, see Tadevosyan v. Holder, 
    743 F.3d 1250
    ,
    1255 (9th Cir. 2014) (explaining that “a prima facie case for relief is sufficient to
    justify reopening”), and that it would be “worthwhile to develop the issues at a
    hearing,” Matter of L-O-G-, 
    21 I. & N. Dec. 413
    , 420 (BIA 1996). We therefore
    grant the petition and remand to the BIA for proceedings consistent with this
    disposition.
    PETITION GRANTED and REMANDED.
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