Alcarez-Rodriguez v. Garland

89 F.4th 754

Filiberto ALCAREZ-RODRIGUEZ, aka Ashley Rodriguez, Petitioner, v. Merrick B. GARLAND, Attorney General, Respondent.

No. 21-411

United States Court of Appeals, Ninth Circuit

Submitted March 9, 2023^* Pasadena, California

Filed December 28, 2023

On Petition for Review of an Order of the Board of Immigration Appeals, Agency No. AXXX-XX1-281

Mariana L. Hanna (argued), Law Offices of Mariana L. Hanna, San Diego, California, for Petitioner.

Aaron Nelson (argued) and Sarah L. Martin, Trial Attorneys; Corey L. Farrell; Gregory D. Mack, Senior Litigation Counsel; Brian M. Boynton, Principal Deputy Assistant Attorney General; United States Department of Justice, Civil Division, Office of Immigration Litigation, Washington, D.C.; for Respondent.

Before: Ronald Lee Gilman,^** Danielle J. Forrest, and Holly A. Thomas, Circuit Judges.

Opinion by Judge Gilman;

Concurrence by Judge Forrest

OPINION

GILMAN, Circuit Judge:

Ashley Rodriguez, a native and citizen of Mexico, petitions for review of the Board of Immigration Appeals's (BIA's) decision and order denying her motion to remand her removal proceedings to the Immigration Judge (IJ) for the consideration of her application for asylum, withholding of removal, and protection under the Convention Against Torture (CAT). Because the BIA did not adequately consider Rodriguez's arguments in support of her motion to remand, we GRANT the petition for review and REMAND the case to the agency to properly consider the merits of Rodriguez's motion.

I. BACKGROUND

On October 17, 2014, the Department of Homeland Security (DHS) served Rodriguez with a putative Notice to Appear (NTA) that did not specify the date or time of any subsequent removal hearings. The NTA alleged that Rodriguez (1) was not a citizen or national of the United States, (2) was a native and citizen of Mexico, (3) had entered the United States near Otay Mesa, California, on approximately September 27, 2010, and (4) had not been admitted or paroled after inspection by an immigration officer. Rodriguez was also charged as removable under 8 U.S.C. § 1182(a)(6)(A)(i) for being present in the United States without inspection or parole. DHS did not file the NTA with the immigration court until March 13, 2015, approximately five months after the NTA was served on Rodriguez.

On March 27, 2015, the immigration court issued a notice stating that Rodriguez's first master calendar hearing was to take place two months later, on June 9, 2015. Rodriguez appeared at the hearing and, through counsel, admitted the first two factual allegations stated in the NTA. She denied, however, the remaining allegations and contested the removability charge.

Because Rodriguez's removability had not yet been established, and because DHS has the burden on this issue, the IJ rightly determined that "[a]ny request for asylum seems premature." The IJ then scheduled another master calendar hearing for eight months later, on February 3, 2016, and gave Rodriguez a deadline of November 3, 2015 to submit a written change to her initial pleading if she wished to do so. Rodriguez complied with the IJ's directions and, on November 3, 2015, she filed an amended pleading in which she conceded her removability.

At the February 3, 2016 hearing, the IJ scheduled yet another master calendar hearing for sixth months later, on August 17, 2016. Rodriguez's application for asylum, withholding of removal, and CAT protection was to be filed with the immigration court at that hearing.

But the August 2016 hearing never materialized. On July 8, 2016, the immigration court sua sponte rescheduled the hearing for March 1, 2017. The immigration court sua sponte rescheduled the hearing yet again on November 28, 2016, this time for May 24, 2017. And on May 4, 2017—three weeks before the already twice-rescheduled hearing was to take place—the immigration court sua sponte rescheduled Rodriguez's proceedings a third time, for December 13, 2017.

At the December 13, 2017 hearing, the IJ asked Rodriguez's counsel whether counsel had prepared an application for relief. Counsel responded by requesting additional time to review Rodriguez's medical records. The IJ agreed to provide more time and also scheduled a hearing on the merits of Rodriguez's forthcoming applications for relief for November 6, 2018. Because Rodriguez's merits hearing would not take place for another 11 months, the deadline for her application for relief was set for September 6, 2018. The IJ told Rodriguez that if the application was not submitted by that date, Rodriguez "r[a]n the risk" of her application being denied.

On September 5, 2018, Rodriguez's counsel filed a motion to extend the filing deadline by 15 days because counsel had been having difficulty reaching Rodriguez. The IJ did not act on the motion until October 4, when he simultaneously denied the extension, vacated the November 6, 2018 hearing, and ordered Rodriguez's removal.

Rodriguez filed a motion to reopen with the immigration court on October 30, 2018. The motion set forth the reasons for Rodriguez's delay in filing her application and included supporting documentation. Rodriguez concurrently filed her completed application for humanitarian relief in the form of asylum, withholding of removal, and CAT protection, along with supporting evidence.

In addition to her motion to reopen with the immigration court, Rodriguez filed a notice of appeal with the BIA on November 2, 2018. She appealed based on the IJ's "err[or] in determining that [Rodriguez] had abandoned her relief applications for failure to timely file."

The BIA acknowledged receipt of Rodriguez's notice of appeal on November 9, 2018. It subsequently assumed jurisdiction over her motion to reopen. In response, Rodriguez filed an amended motion to remand (improperly styled as a motion to reopen) on December 26, 2018.

According to the motion, Rodriguez learned in 2015 that she had contracted HIV from her physically abusive former partner. She left that partner in approximately November 2017, just before the master calendar hearing during which the IJ set the September 2018 deadline for the filing of Rodriguez's application for relief. Because of her immigration status, Rodriguez was not authorized to work in the United States and was thus financially dependent on her partner.

Rodriguez became homeless without her partner's support, and her phone was eventually disconnected. She therefore received no communication from her attorney until September 5, 2018, when her ex-partner's mother hand-delivered a letter that had been sent to Rodriguez's former residence. During this time, moreover, Rodriguez was unable to access medical documents and criminal records relevant to her asylum application because she lacked funds to pay the storage facility where those documents were kept.

The motion also detailed Rodriguez's health challenges. Rodriguez was severely depressed and suffered from suicidal ideations. She was also immunocompromised because of her HIV and had gone to the emergency room three times in September 2018, the very month when her relief application had been due.

Finally, Rodriguez's motion included her application for asylum, withholding of removal, and CAT protection, along with supporting evidence that she contended would demonstrate her prima facie eligibility for relief. Rodriguez requested in the alternative that the BIA exercise its discretion to remand her proceedings sua sponte.

The BIA did not issue a briefing schedule for Rodriguez's appeal until September 16, 2020, nearly two years after Rodriguez filed her motion to remand. Nine months later, on June 17, 2021, the BIA denied Rodriguez's motion and dismissed her appeal. In so doing, however, the BIA did no more than cursorily consider the merits of the motion to remand.

Rodriguez timely petitioned for review before this court on July 16, 2021. She does not, contrary to the government's assertions, argue that the IJ erred in initially deeming her application abandoned, or that the IJ abused his discretion when he refused to extend her September 2018 filing deadline. Similarly, Rodriguez does not seek review of the BIA's refusal to exercise its sua sponte authority to grant her motion to remand. And she nowhere requests us to adjudicate a request for humanitarian asylum, a specific form of relief from removal whose requirements are set forth in 8 C.F.R. § 1208.13(b)(1)(iii) (2023).

Rodriguez instead simply requests us to remand her case to the BIA so that it might properly consider her motion to remand. The motion was filed on the basis of (1) newly available evidence that established her prima facie eligibility for the relief sought, and (2) good cause for missing the IJ's September 6, 2018 filing deadline.

II. ANALYSIS

Rodriguez's amended motion to reopen, filed with the BIA on December 26, 2018, is properly characterized as a motion to remand proceedings to the IJ. See Rodriguez v. INS, 841 F.2d 865, 867 (9th Cir. 1987) (noting that where an appeal is pending and the BIA has not yet issued a decision, a motion to reopen before the BIA should be treated as a motion to remand). However, "[t]he formal requirements of the motion to reopen and those of the motion to remand are for all practical purposes the same." Id.

A. Standard of review

We review the BIA's denial of a motion to remand using the abuse-of-discretion standard. Malhi v. INS, 336 F.3d 989, 993 (9th Cir. 2003). The BIA abuses its discretion when it "act[s] arbitrarily, irrationally, or contrary to law." Mohammed v. Gonzales, 400 F.3d 785, 791 (9th Cir. 2005). Such abuse includes "when it fails to offer a reasoned explanation for its decision, [or when it] distorts or disregards important aspects" of the claim. Malhi, 336 F.3d at 993 (quoting Konstantinova v. INS, 195 F.3d 528, 529 (9th Cir. 1999)). B. The BIA abused its discretion by failing to address Rodriguez's arguments that she could establish prima facie eligibility for withholding of removal and CAT protection...