No IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT. VICTOR WILLIAM MOLINA, A , Petitioner,

Case: 12-73462 07/10/2013 RESTRICTED ID: 8698917 DktEntry: 17-1 Page: 1 of 72 No. 12-73462 IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT VICTOR WILLIAM MOLINA, A 020-065-527, Petitioner, v. ERIC H. HOLDER, Attorney General, Respondent. Appeal of Board of Immigration Appeals Order Denying Motion to Reopen PETITIONER S OPENING BRIEF MICHAEL KAUFMAN mkaufman@aclu-sc.org AHILAN T. ARULANANTHAM aarulanantham@aclu-sc.org ACLU FOUNDATION OF SOUTHERN CALIFORNIA 1313 West Eighth Street Los Angeles, California 90017 (213) 977-5232 Attorneys for Petitioner

Case: 12-73462 07/10/2013 RESTRICTED ID: 8698917 DktEntry: 17-1 Page: 2 of 72 CORPORATE DISCLOSURE STATEMENT There are no corporations involved in this case.

Case: 12-73462 07/10/2013 RESTRICTED ID: 8698917 DktEntry: 17-1 Page: 3 of 72 TABLE OF CONTENTS Introduction...1 Statement of Facts...3 Procedural History...5 Statement of Jurisdiction and Standard of Review...11 Summary of Argument...12 Argument...15 I. Mr. Molina Was Deported in Violation of the INA...15 II. The BIA Erred in Denying Mr. Molina s Motion to Reopen...19 A. Statutory and Regulatory History Governing Motions to Reopen...19 B. The BIA Erred in Holding that a Intervening Decision Cannot Constitute a Basis for Equitable Tolling...24 1. This Court s Law Governing Equitable Tolling in the Immigration Context Makes Clear that Mr. Molina Timely Filed His Motion...25 2. Caselaw from Analogous Contexts Establishes the Availability of Equitable Tolling for Errors of Law Like Those at Issue Here...28 3. Equitable Tolling is Warranted Because Mr. Molina Has Diligently Pursued his Claims...33 C. The BIA Erred in Holding that the Departure Bar Prohibits the Sua Sponte Reopening of Mr. Molina s Case...34 1. The BIA's Application of the Departure Bar Is Arbitrary and Capricious...35 i

Case: 12-73462 07/10/2013 RESTRICTED ID: 8698917 DktEntry: 17-1 Page: 4 of 72 a. The BIA Has Failed to Provide a Reasoned Explanation for its Construction of the Departure Bar...35 b. The BIA s Inconsistent Application of the Departure Bar...42 2. The Departure Bar Does Not Prohibit Sua Sponte Reopening in This Case...46 a. The Ninth Circuit has Held that the Departure Bar Does Not Apply Where a Deportation Was Not "Legally Executed"... 46 b. The Departure Bar Does Not Limit the Agency's Authority to Reopen Sua Sponte...52 c. The Ninth Circuit Has Held that the Departure Bar Does Not Apply to Motions to Reopen Filed After the Closure of Proceedings...54 Conclusion...56 ii

Case: 12-73462 07/10/2013 RESTRICTED ID: 8698917 DktEntry: 17-1 Page: 5 of 72 TABLE OF AUTHORITIES CASES Agostini v. Felton, 521 U.S. 203 (1997)...29 Alaimalo v. United States, 645 F.3d 1042 (9th Cir. 2011)...31 Alvarez-Barajas v. Gonzales, 418 F.3d 1050 (9th Cir. 2005)...9 Aragon-Ayon v. INS, 206 F.3d 847 (9th Cir. 2000)...7 Avagyan v. Holder, 646 F.3d 672 (9th Cir. 2011)...25, 29 Bellevue Manor Assocs. v. United States, 165 F.3d 1249 (9th Cir. 1999)...29, 32 Carachuri-Rosendo v. Holder, 130 S. Ct. 2577 (2010)...38 Cardenas-Delgado v. Holder, U.S. App. LEXIS 13085 (9th Cir. June 26, 2013)... 10, 16, 48 Cardoso-Tlaseca v. Gonzales, 460 F.3d 1102 (9th Cir. 2006)... 46, 47, 48 Castro v. Att y Gen., 671 F.3d 356 (3d Cir. 2012)...36 Catawba County v. EPA, 571 F.3d 20 (D.C. Cir. 2009)...45 Chen v. Ashcroft, 378 F.3d 1081 (9th Cir. 2004)...54 Contreras-Bocanegra v. Holder, 678 F.3d 811 (10th Cir. 2012)...23 iii

Case: 12-73462 07/10/2013 RESTRICTED ID: 8698917 DktEntry: 17-1 Page: 6 of 72 Corjasso v. Ayers, 278 F.3d 874 (9th Cir. 2002)...29 Coyt v. Holder, 593 F.3d 902 (9th Cir. 2010)...passim Dada v. Mukasey, 554 U.S. 1 (2008)...25 De Rincon v. DHS, 539 F.3d 1133 (9th Cir. 2008)...50 Delgadillo v. Carmichael, 332 U.S. 388 (1947)...52 Dent v. Holder, 627 F.3d 365 (9th Cir. 2010)...51 Desai v. AG of the United States, 695 F.3d 267 (3d Cir. 2012)...12, 23 Feliz Debeato v. AG of the United States, 505 F.3d 231 (3d Cir. 2007)...50 Garcia-Carias v. Holder, 697 F.3d 257 (5th Cir. 2012)...23 Hernandez de Anderson v. Gonzales, 497 F.3d 927 (9th Cir. 2006)...9 Holder v. Martinez-Gutierrez, 132 S. Ct. 2011 (2012)...42 Holland v. Florida, 130 S. Ct. 2549 (2010)...31, 33 Husyev v. Mukasey, 528 F.3d 1172 (9th Cir. 2008)...11 In re Acosta, 2013 WL 1933892 (BIA March 13, 2013)...43, 44 In re Bringas, 2004 WL 1398720 (BIA Apr. 14, 2004)...22 iv

Case: 12-73462 07/10/2013 RESTRICTED ID: 8698917 DktEntry: 17-1 Page: 7 of 72 In re Carvajal, 2009 Immig. Rptr. LEXIS 446 (BIA June 1, 2009)...41 In re Eddie Mendiola, 2012 WL 3276543 (BIA July 11, 2012)...43 In re Katongole, 2009 WL 5252677 (BIA Dec. 9, 2009)...22 In re Longoria-Ramos, 2007 WL 2299627 (BIA July 28, 2007)...22 In Re Pacheco, 2012 Immig. Rptr. LEXIS 5532 (BIA May 22, 2012)...43, 44 In re Okogwu, 2007 WL 2074435 (BIA Jun. 13, 2007)...22 In re Rodney, 2007 WL4699789 (BIA Nov. 30, 2007)...22 In re Rosales Martinez, 2010 Immig. Rptr. LEXIS 5301(BIA July 27, 2010)...41, 43 In re Salama, 2010 WL 5559194 (BIA Dec. 17, 2010)...43, 44 In re Sultanyan, 2009 WL 2437155 (BIA July 29, 2009)...22 In re Torres-Jimenez, 2012 Immig. Rptr. LEXIS 5712 (BIA Aug. 17, 2012)...43 In re Vasquez-Muniz, 23 I. & N. Dec. 207 (BIA 2002)...22 INS v. Cardoza-Fonseca, 480 U.S. 421 (1987)...55 INS v. Yueh-Shaio Yang, 519 U.S. 26 (1997)...45 v

Case: 12-73462 07/10/2013 RESTRICTED ID: 8698917 DktEntry: 17-1 Page: 8 of 72 Iturribarria v. INS, 321 F.3d 889 (9th Cir. 2003)... 26, 27, 33 Judulang v. Holder, 132 S. Ct. 476 (2011)...passim Kucana v. Holder, 558 U.S. 233 (2010)... 11, 25, 51 Landon v. Plasencia, 459 U.S. 21 (1982)...52 Laws v. Lamarque, 351 F.3d 919 (9th Cir. 2003)...29 Lee v. Lampert, 653 F.3d 929 (9th Cir. 2011)...31 Lin v. United States AG, 681 F.3d 1236 (11th Cir. 2012)...23, 55 Lopez v. Gonzales, 549 U.S. 47 (2006)...38 Lott v. Mueller, 304 F.3d 918 (9th Cir. 2002)...29 Luna v. Holder, 637 F.3d 85 (2d Cir. 2011)...23 Marin-Rodriguez v. Holder, 612 F.3d 591 (7th Cir. 2010)...23, 45 Matter of Armendarez, 24 I. & N. Dec. 646 (BIA 2008)...passim Matter of Bulnes-Nolasco, 25 I. & N. Dec. 57 (BIA 2009)...37 Matter of Farinas, 12 I. & N. Dec. 467 (BIA 1967)...50 Matter of G- y B-, 6 I. & N. Dec. 159 (BIA 1954)...20 vi

Case: 12-73462 07/10/2013 RESTRICTED ID: 8698917 DktEntry: 17-1 Page: 9 of 72 Matter of G-D-, 22. I. & N. Dec. 1132 (BIA 1999)...21 Matter of J-J-, 21 I. & N. Dec. 976 (BIA 1997)...21 Matter of Luis, 22 I. & N. Dec. 747, 752 (BIA 1999)...53 Matter of Reyes-Velasquez, 2010 Immig. Rptr. LEXIS 7860 (Mar. 18, 2010)...44 Matter of X-G-W, 22 I. & N. Dec. 71 (BIA 1998)...21 Mejia-Hernandez v. Holder, 633 F.3d 818 (9th Cir. 2011)...11, 12 Mendez v. INS, 563 F.2d 956 (9th Cir. 1977)...47 Miles v. Prunty, 187 F.3d 1104 (9th Cir. 1999)...28, 29 Molina v. Holder, 559 U.S. 1005 (2010)...9 Molina v. Mukasey, 306 Fed. Appx. 389 (9th Cir. 2009)...8, 9 Morales-Izquierdo v. Gonzales, 486 F.3d 484 (9th Cir. 2007)... 26, 33, 50 Mujahid v. Daniels, 413 F.3d 991 (9th Cir. 2005)...55 Nat l Cable & Telecomms. Ass n v. Brand X Internet Servs., 545 U.S. 967 (2005)...55 Nken v. Holder, 556 U.S. 418 (2009)... 21, 38, 39 Ortega-Marroquin v. Holder, 640 F.3d 814 (8th Cir. 2011)...23, 44 vii

Case: 12-73462 07/10/2013 RESTRICTED ID: 8698917 DktEntry: 17-1 Page: 10 of 72 Ovalles v. Holder, 577 F.3d 288 (5th Cir. 2009)...12, 23 Peng v. Holder, 673 F.3d 1248 (9th Cir. 2012)...11 Peralta-Cabrera v. Gonzales, 501 F.3d 837 (7th Cir. 2007)...47 Phelps v. Alameida, 569 F.3d 1120 (9th Cir. 2009)...30, 33 Pichardo v. Ashcroft, 374 F.3d 46 (2d Cir. 2004)...30 Planes v. Holder, 652 F.3d 991 (9th Cir. 2011)...51 Prestol Espinal v. AG of the United States, 653 F.3d 213 (3d Cir. 2011)...23 Pruidze v. Holder, 632 F.3d 234 (6th Cir. 2011)...23, 38 Reyes-Torres v. Holder, 645 F.3d 1073 (9th Cir. 2011)...23 Reynoso-Cisneros v. Gonzales, 491 F.3d 1001 (9th Cir. 2007)...54 Rivers v. Roadway Express, Inc., 511 U.S. 298 (1994)...17 Rosenberg v. Fleuti, 374 U.S. 449 (1963)...6, 7, 15 Roy v. Lampert, 465 F.3d 964 (9th Cir. 2006)...29 Santiago-Rodriguez v. Holder, 657 F.3d 820 (9th Cir. 2011)...17 Saravia-Paguada v. Gonzales, 488 F.3d 1122 (9th Cir. 2007)...9 viii

Case: 12-73462 07/10/2013 RESTRICTED ID: 8698917 DktEntry: 17-1 Page: 11 of 72 Socop-Gonzalez v. INS, 272 F.3d 1176 (9th Cir. 2001)...passim Stone v. INS, 514 U.S. 386 (1995)...29 Teague v. Lane, 489 U.S. 288 (1989)...17 Thorsteinsson v. INS, 724 F.2d 1365 (9th Cir. 1984)...47 United States v. Arias-Ordonez, 597 F.3d 972 (9th Cir. 2010)...50 United States v. Bousley, 523 U.S. 614 (1998)...18, 32 United States v. Camacho-Lopez, 450 F.3d 928 (9th Cir. 2006)...49 United States v. Leon-Paz, 340 F.3d 1003 (9th Cir. 2003)...49 United States v. Lopez-Ortiz, 313 F.3d 225 (5th Cir. 2002)...17 United States v. Lopez-Velasquez, 629 F.3d 894 (9th Cir. 2010)...26 United States v. Rivera-Nevarez, 418 F.3d 1104 (10th Cir. 2005)...17 United States v. Vidal-Mendoza, 705 F.3d 1012 (9th Cir. 2013)...49 Varela v. INS, 204 F.3d 1237 (9th Cir. 2000)...26, 27 Vartelas v. Holder, 132 S. Ct. 1479 (2012)...passim William v. Gonzales, 499 F.3d 329 (4th Cir. 2007)...23 ix

Case: 12-73462 07/10/2013 RESTRICTED ID: 8698917 DktEntry: 17-1 Page: 12 of 72 Zepeda-Melendez v. INS, 741 F.2d 285 (9th Cir. 1984)...47 Zhang v. Holder, 617 F.3d 650 (2d Cir. 2010)...12, 23 Zi-Xing Lin v. Gonzales, 473 F.3d 979 (9th Cir. 2007)...12, 54 STATUTES 8 U.S.C. 1101(a)(43)(F)...7 8 U.S.C. 1105a(a)(3)...20 8 U.S.C. 1105a(c)...20 8 U.S.C. 1105a(3)...20 8 U.S.C. 1182(a)(2)(A)(i)...7 8 U.S.C. 1182(a)(9)(A)(ii)...32 8 U.S.C. 1229a(c)(5)...20 8 U.S.C. 1229a(c)(6)...20 8 U.S.C. 1229a(c)(7)...23 8 U.S.C. 1229a(c)(7)(C)...25 8 U.S.C. 1252...21 8 U.S.C. 1252(a)...11 8 U.S.C. 1252(a)(2)(D)...11 8 U.S.C. 1326...49 28 U.S.C. 2255...30, 32 28 U.S.C. 2255(f)(1)...31 x

Case: 12-73462 07/10/2013 RESTRICTED ID: 8698917 DktEntry: 17-1 Page: 13 of 72 28 U.S.C. 2255(f)(3)...31 8 U.S.C.A. 1182(a)(9) (1990)...6 8 U.S.C.A. 1251(a)(4)...6 IIRIRA 304...21 IIRIRA 306(a)...21 IIRIRA 306(b)...21, 47 Act of September 26, 1961, Pub. L. No. 87-301, 5(a) (1961)...20 Cal. Pen. Code 220...4 Cal. Pen. Code 1203.4...5 OTHER AUTHORITIES 8 C.F.R. 3.4...53 8 C.F.R. 1003.2(a)...53 8 C.F.R. 1003.2(d)...passim 8 C.F.R. 1003.44...42 8 C.F.R. 1003.44(k)...41 8 CFR 1003.1(b)...53 5 Fed. Reg. 3502, 3504 (September 4, 1940)...19 5 Fed. Reg. 3504 (September 4, 1940)...19 17 Fed. Reg. 11469 (December 19, 1952)...20 17 Fed. Reg. 11475 (December 19, 1952)...20 23 Fed. Reg. 9115, 9118 (Nov. 26, 1958)...20 62 Fed. Reg. 10312 (Mar. 6, 1997)...22 xi

Case: 12-73462 07/10/2013 RESTRICTED ID: 8698917 DktEntry: 17-1 Page: 14 of 72 62 Fed. Reg. 10321 (Mar. 6, 1997)...22 62 Fed. Reg. 10331 (Mar. 6, 1997)...22 68 Fed. Reg. 9824 (Feb. 28, 2003)...22 68 Fed. Reg. 9830 (Feb. 28, 2003)...22 Fed. R. Civ. P. 60(b)...passim Fed. R. Civ. P. 60(b)(5)...29, 30 Fed. R. Civ. P. 60(b)(6)...30 Charles Alan Wright & Arthur Miller, Federal Practice and Procedure: Civil 2961 (2d ed. 1995 & Supp. 2010)...20 xii

Case: 12-73462 07/10/2013 RESTRICTED ID: 8698917 DktEntry: 17-1 Page: 15 of 72 INTRODUCTION Victor Molina lived in this country for nearly thirty years as a lawful permanent resident, and his wife, children, and grandchildren all remain in the United States. He was deported in 2010 based on a conviction from 1990 that unquestionably did not authorize his deportation. He raised meritorious legal challenges to his deportation at every stage of proceedings, including before the Board of Immigration Appeals ( BIA ), this Court, and in a petition for certiorari before the United States Supreme Court. But his claims were rejected at each step, and the Supreme Court declined to hear his case. In keeping with this Court s mandate, Mr. Molina complied with the removal order and was removed to Colombia in 2010, where he remains today, separated from his family. Roughly two years after his departure, the Supreme Court granted review in a different case that addressed the issues that Mr. Molina had raised, and issued a ruling adopting the arguments he had advanced. See Vartelas v. Holder, 132 S. Ct. 1479 (2012). Less than thirty days later, he filed a motion to reopen his proceedings based on that decision, seeking application of the correct law to his case. But the BIA denied his motion, holding that he has no avenue for relief even though his removal was plainly illegal. Thus, this case presents the simple question of whether a non-citizen deported under an erroneous interpretation of the immigration laws, and who 1

Case: 12-73462 07/10/2013 RESTRICTED ID: 8698917 DktEntry: 17-1 Page: 16 of 72 timely raises a meritorious challenge to his removal at every stage of proceedings, has any avenue for relief by which he can have the benefit of the law as Congress originally intended it. The Government apparently takes the position that such individuals have no remedy. However, the Government s position is erroneous for at least two reasons. First, because Mr. Molina filed his motion to reopen within 90 days of the Supreme Court s decision, the statutory deadline for filing a motion to reopen must be equitably tolled to allow him to raise the issues decided in his favor in Vartelas. A wealth of authority from a variety of contexts recognizes equitable tolling as the mechanism to permit individuals to obtain the benefit of decisions clarifying the correct interpretation of statutes in situations like this one. Second, even if the statutory deadline cannot be equitably tolled, the BIA should have exercised its authority to reopen his case sua sponte, as it has routinely done for fundamental changes of law in other cases. The BIA claimed that a regulation known as the departure bar barred it from reopening Mr. Molina s case because he is abroad, but that interpretation is inconsistent with established Ninth Circuit precedent construing the scope of that regulation. Moreover, even if the regulation does apply, the BIA has failed to advance a reasoned basis for its interpretation which rewards people who break the law by remaining in the United States after being ordered deported, at the expense of people who follow 2

Case: 12-73462 07/10/2013 RESTRICTED ID: 8698917 DktEntry: 17-1 Page: 17 of 72 the law, as Mr. Molina did and its application of the bar is therefore arbitrary and capricious under Judulang v. Holder, 132 S. Ct. 476 (2011). STATEMENT OF FACTS Victor William Molina de la Villa was born on May 22, 1952 in Colombia. He first traveled to the United States as a visitor in 1971. He returned to Colombia thereafter, and then came again to this country to study in 1974. While studying in the northeast in 1977 he met and then married Zoraida Molina, an American citizen from Puerto Rico. AR 642. The couple has now been married for 36 years, including the last two and a half years since he left the United States pursuant to his removal order. 1 Mr. Molina became a lawful permanent resident on January 20, 1980, as the spouse of an American citizen. He and his wife lived in New Jersey and Puerto Rico for some time before settling in the Southern California area. During this time, Mr. Molina worked as a mechanic and a truck driver, while he and Mrs. Molina raised the couple s three children: Maritza, Katherine, and Victor Jr. AR 432, 629-631, 637. Mr. Molina served as the breadwinner for his family until he was detained in connection with his removal proceedings. AR 444. In 1990, Mr. Molina was arrested for violating California Penal Code 220, Assault with Intent to Commit Rape, Mayhem, etc. The incident involved an 1 Cites to the administrative record are denoted AR ; to Petitioner s excerpts of records, ER ; and to Petitioner s request for judicial notice, RJN. 3

Case: 12-73462 07/10/2013 RESTRICTED ID: 8698917 DktEntry: 17-1 Page: 18 of 72 encounter he had, while drinking, with a woman during the daytime. Mr. Molina admitted to having encountered the woman in question, but claimed that he had never intended to rape her. AR 642. After a trial, a jury found Mr. Molina guilty as charged, and he was convicted in February 1990. AR 1113-1121. Mr. Molina had never been convicted of a crime before, and has not been arrested or convicted since. AR 642. 2 At his sentencing, the judge found unusual reasons justifying a substantially reduced sentence. He stated that [a]t this time I intend to grant probation. The unusual reasons being there was no harm to this lady. Mr. Molina did walk away when screaming was heard. This was daytime. She wasn t too much harmed. AR 1107. Mr. Molina received a sentence of six years suspended to 365 days of county jail followed by probation. He ultimately spent approximately six months in county jail prior to his release. AR 642. After his conviction, Mr. Molina worked hard to rehabilitate himself. He attended family counseling as a condition of probation, which he successfully completed. AR 642, 528. He dedicated himself to his wife and family, continued to support his family financially, became heavily involved with his children s education, and became an active member of his church community. AR 658, 2 As Mr. Molina argued in his prior petition for review, he relied on the absence of serious immigration consequences at the time of his conviction in deciding to go to trial, as he likely could have pled guilty to a lesser offense had he known of the future immigration consequences of his conviction. See generally AR 484-494. 4

Case: 12-73462 07/10/2013 RESTRICTED ID: 8698917 DktEntry: 17-1 Page: 19 of 72 (letter from children s educational advisor at school); AR 655 (letter from social worker); AR 657 (letter from minister). In 1998, the California Superior Court judge who had originally sentenced him granted his motion for an expungement under California Penal Code 1203.4. AR 266. In February 2002, Mr. Molina was allowed to renew his green card in February 2002 without incident. AR 443. In December 1998, Mr. Molina traveled for two weeks to Colombia to visit his elderly parents. In March 2002 Mr. Molina traveled again to Colombia, going this time for less than two weeks with his two brothers for his father s 90th birthday. On both occasions, he was allowed to return without incident. AR 438. On November 20, 2002, Mr. Molina traveled for a third time to Colombia to see his family for a period of less than two weeks. However, upon his return to the United States, the government detained him for removal proceedings based on his then-twelve year old conviction. AR 345, 524-525, 642. PROCEDURAL HISTORY The government charged that Mr. Molina was inadmissible based on his 1990 conviction and that he was barred from applying for any discretionary relief from removal. At the time of Mr. Molina s conviction, his offense did not render him deportable. See 8 U.S.C.A. 1251(a)(4); 1101(a)(43) (1990) (grounds of deportability included aggravated felonies, but the aggravated felony definition did 5

Case: 12-73462 07/10/2013 RESTRICTED ID: 8698917 DktEntry: 17-1 Page: 20 of 72 not include crimes of violence). However, the conviction did carry certain far more minor immigration consequences. In particular, it made him excludable from the United States, but only if he were to travel abroad in a way that meaningfully interrupted his residence here. See 8 U.S.C.A. 1182(a)(9) (1990) (grounds of exclusion included crimes involving moral turpitude ); Rosenberg v. Fleuti, 374 U.S. 449, 462 (1963) (lawful permanent residents returning from meaningfully interruptive travel abroad could be excluded upon return based on grounds of excludability). However, even if Mr. Molina were found subject to such exclusion, his conviction would not have precluded him from applying for discretionary relief from the ground of exclusion under Section 212(c). Six years after Mr. Molina s conviction, in 1996, Congress passed the Illegal Immigration Reform and Immigrant Responsibility Act ( IIRIRA ), which drastically altered the consequences of certain criminal convictions, while leaving ambiguous whether those changes applied retroactively to pre-enactment convictions. Two changes made by IIRIRA are particularly relevant here. First, IIRIRA amended the Immigration and Nationality Act s ( INA ) treatment of returning lawful permanent residents by, inter alia, establishing that certain lawful permanent residents returning from a trip abroad, including those convicted of certain offenses, should be treated as seeking admission, regardless of the length or purpose of the foreign travel. See 8 U.S.C. 1182(a)(2)(A)(i). In so doing, 6

Case: 12-73462 07/10/2013 RESTRICTED ID: 8698917 DktEntry: 17-1 Page: 21 of 72 IIRIRA effectively superseded the Fleuti doctrine, under which lawful permanent residents were not treated as making an entry and subjected to potential exclusion based on grounds of inadmissibility upon their return from innocent, casual and brief excursion[s]... outside this country s borders. See Vartelas, 132 S. Ct. at 1484 (quoting Fleuti, 374 U.S. at 462). Second, IIRIRA 304(b) repealed Section 212(c) relief, and replaced it with a more limited form of discretionary relief known as cancellation of removal. 3 The Supreme Court addressed the temporal scope of the second of these provisions in 2001, holding in INS v. St. Cyr that IIRIRA s repeal of Section 212(c) did not apply retroactively to individuals who pled guilty to a crime prior to the effective date of IIRIRA. 533 U.S. 289, 315 (2001). The decision did not explicitly address whether Section 212(c) remained available to individuals, like Mr. Molina, who were convicted by jury trial prior to IIRIRA, and the circuit courts subsequently split over that question. In his removal proceedings, Mr. Molina argued that both of these changes in IIRIRA the change to the law governing the treatment of returning lawful 3 IIRIRA also re-classified Mr. Molina s conviction as an aggravated felony by specifying that any conviction for a crime of violence with a term of imprisonment of at least one year constituted an aggravated felony, thus rendering him ineligible for cancellation of removal. See 8 U.S.C. 1101(a)(43)(F) (1997); IIRIRA 321(c). However, unlike the other changes described above, the statute made clear that Section 321(c) applied retroactively to pre-enactment offenses. See Aragon-Ayon v. INS, 206 F.3d 847, 853 (9th Cir. 2000). 7

Case: 12-73462 07/10/2013 RESTRICTED ID: 8698917 DktEntry: 17-1 Page: 22 of 72 permanent residents and the elimination of Section 212(c) relief should not be applied retroactively to him. The Immigration Judge disagreed and held that Mr. Molina s prior conviction rendered him both inadmissible and ineligible for all discretionary relief from removal as a matter of law. AR 342-344 The BIA affirmed, relying on Ninth Circuit precedent holding that IIRIRA s changes applied retroactively to non-citizens convicted by trial. AR 188. Mr. Molina then sought judicial review of these two closely related challenges to his removal order. First, he filed a petition for review with the Ninth Circuit challenging the agency s decision to treat him as an alien seeking admission, rather than as a returning lawful permanent resident. See ER 279-305. Second, he filed a habeas petition in district court challenging the agency s conclusion that he was ineligible for Section 212(c) relief based on retroactive application of IIRIRA 304(b). See ER 117-144. That habeas petition was transferred to the Ninth Circuit and treated as a petition for review pursuant to the REAL ID Act. See generally Alvarez-Barajas v. Gonzales, 418 F.3d 1050, 1052 (9th Cir. 2005). This Court consolidated the petitions for review and denied them both in an unpublished disposition. See Molina v. Mukasey, 306 Fed. Appx. 389 (9th Cir. 2009). The Court held that Mr. Molina could not show that he had suffered impermissible retroactive effect because we require that an alien must 8

Case: 12-73462 07/10/2013 RESTRICTED ID: 8698917 DktEntry: 17-1 Page: 23 of 72 demonstrate some affirmative reliance on a previously available immigration benefit to show impermissible retroactivity and Mr. Molina could not make that showing: [b]y simply going to trial, Molina showed no affirmative reliance on the state of the law at the time. Id. at 392. The Court relied on precedent decisions to reach that conclusion. See id. at 392-93 (citing, inter alia, Saravia-Paguada v. Gonzales, 488 F.3d 1122 (9th Cir. 2007) and Hernandez de Anderson v. Gonzales, 497 F.3d 927 (9th Cir. 2006)). As this Court explained in Saravia, it had excluded categorically claims for 212(c) relief outside the guilty plea context. 488 F.3d at 1131. Mr. Molina then sought rehearing en banc, arguing that this Court should revisit its precedent and hold that affirmative reliance is not required to avoid the retroactive effect of a change in law. See ER 53-67. This Court denied the petition. ER 9 (Dkt. 109). He then filed a petition for a writ of certiorari, which the Supreme Court denied. See ER 10-52; Molina v. Holder, 559 U.S. 1005 (2010). After the agency refused to grant him prosecutorial discretion, Mr. Molina left the country. Two years later, on March 28, 2012, the Supreme Court resolved the split in the lower courts concerning the retroactive effect of the changes to IIRIRA at issue in Mr. Molina s case in Vartelas v. Holder, 132 S. Ct. 1479 (2012). Vartelas held that IIRIRA s changes to the INA s treatment of returning lawful permanent 9

Case: 12-73462 07/10/2013 RESTRICTED ID: 8698917 DktEntry: 17-1 Page: 24 of 72 residents did not apply retroactively to people who were convicted prior to IIRIRA s effective date. Id. at 1484. Vartelas thus made clear that Mr. Molina should have been treated as a returning lawful permanent resident rather than an alien seeking admission. In addition, the Supreme Court held more generally that the presumption against retroactive application of statutes does not require a showing of detrimental reliance. Id. at 1491. As this Court recently held, that aspect of Vartelas overruled the Ninth Circuit case law requiring a showing of reliance, and thereby vindicated Mr. Molina s argument that IIRIRA s repeal of Section 212(c) did not apply retroactively to him even though he was convicted by jury trial. See Cardenas-Delgado v. Holder, F.3d, 2013 U.S. App. LEXIS 13085, *17 (9th Cir. June 26, 2013). On April 26, 2012, less than 90 days after the Supreme Court issued Vartelas, Mr. Molina filed a motion to reopen his removal order with the BIA based on that decision. AR 11. 4 Mr. Molina argued that his motion was timely because the 90-day deadline for filing motions to reopen was equitably tolled due to the clarification of law brought about by Vartelas. In the alternative, he 4 Mr. Molina also sought reopening based on Peng v. Holder, 673 F.3d 1248 (9th Cir. 2012), which this Court issued on March 22, 2012, several days prior to Vartelas. Peng held that [a]liens... who were not charged with aggravated felonies and made the decision to proceed to trial, thus did so in reasonable reliance on the pre-iirira state of law. Id. at 1257. 10

Case: 12-73462 07/10/2013 RESTRICTED ID: 8698917 DktEntry: 17-1 Page: 25 of 72 requested that the BIA sua sponte reopen his case because Vartelas constitutes a fundamental change of law. Id. at 12-13. The BIA denied Petitioner s motion to reopen on September 27, 2012. AR 3. The BIA held that the motion was untimely because recent precedential decisions did not constitute grounds for equitable tolling, and declined to sua sponte reopen proceedings because it read the regulations to preclude the Board from reopening for an individual who had departed the United States. Id. This timely appeal followed. STATEMENT OF JURISDICTION AND STANDARD OF REVIEW Mr. Molina petitions for review of the Board s decision denying his motion to reopen. This Court has jurisdiction to review denied motions to reopen under 8 U.S.C. 1252(a). Kucana v. Holder, 558 U.S. 233, 250 (2010). Additionally, this Court has jurisdiction to review all questions of law arising in petitions for review. See 8 U.S.C. 1252(a)(2)(D). See generally Husyev v. Mukasey, 528 F.3d 1172, 1178 (9th Cir. 2008) (Section 1252(a)(2)(D) dramatically altered the effect of statutes stripping us of jurisdiction to review BIA decisions ). Because the Board declined to exercise its authority to sua sponte reopen based on its legal determination that it lacked jurisdiction not because it found that sua sponte reopening was unwarranted on a discretionary basis this Court has jurisdiction to review the Board s denial. Compare Mejia-Hernandez v. 11

Case: 12-73462 07/10/2013 RESTRICTED ID: 8698917 DktEntry: 17-1 Page: 26 of 72 Holder, 633 F.3d 818, 823 (9th Cir. 2011) (holding that BIA s discretionary decision to sua sponte reopen is unreviewable under the APA) with Desai v. U.S. AG of the United States, 695 F.3d 267, 269 (3d Cir. 2012) ( we exercise our jurisdiction in this case to examine the validity of the BIA s legal determination that the post-departure bar precluded its review of Desai's motion to reopen sua sponte ); Zhang v. Holder, 617 F.3d 650, 660 (2d Cir. 2010) (same); Ovalles v. Holder, 577 F.3d 288, 291 (5th Cir. 2009) (same). This Court review[s] a ruling on the merits of a motion to reopen for abuse of discretion, and questions of law, including an agency s determination of its own jurisdiction, de novo. Zi-Xing Lin v. Gonzales, 473 F.3d 979, 981 (9th Cir. 2007). SUMMARY OF ARGUMENT The Supreme Court s decision in Vartelas indisputably establishes that Mr. Molina, a long-time lawful permanent resident, was deported in violation of the immigration laws. The Court s decision adopts the arguments that Mr. Molina raised at every stage in his underlying removal case, including in his petition for review, petition for rehearing en banc, and petition for certiorari. In light of Vartelas, there can be no serious dispute that Mr. Molina s deportation was illegal under the law as Congress enacted it. See infra Section I. 12

Case: 12-73462 07/10/2013 RESTRICTED ID: 8698917 DktEntry: 17-1 Page: 27 of 72 Nonetheless, the Board denied Mr. Molina s motion to reopen based on Vartelas, stating that the agency has no power to correct its own errors and effectively declaring that Mr. Molina s unlawful banishment from this country is irreversible. The Board cited two grounds for its denial. First, it held that because Vartelas reinterpreted the law, the fact that the Board s prior interpretation was erroneous could not constitute a basis for equitable tolling, such that his motion to reopen was untimely. Second, it held that 8 C.F.R. 1003.2 (the departure bar ) deprived the Board of jurisdiction to consider Mr. Molina s request for sua sponte reopening because the Board lacks jurisdiction to reopen sua sponte for noncitizens who are abroad. The Board erred on both accounts. This Court has held that the 90-day deadline for motions to reopen is subject to equitable tolling and, in analogous contexts, has held that equitable tolling is available where a Supreme Court decision corrects a prior, erroneous interpretation of a statute. As such, because Mr. Molina filed his motion to reopen within 90 days of the Supreme Court s decision in Vartelas, it is timely. See infra Section II.B. If equitable tolling is unavailable, this Court should declare that the Board s denial of sua sponte reopening based on the departure bar which this Court has already struck down with respect to statutory motions to reopen is arbitrary and capricious for two reasons. First, the BIA has failed to offer a reasoned 13

Case: 12-73462 07/10/2013 RESTRICTED ID: 8698917 DktEntry: 17-1 Page: 28 of 72 explanation for its interpretation of the departure bar that is tied to the purposes of the immigration laws or the appropriate operation of the immigration system. Judulang v. Holder, 132 S. Ct. 476, 483-84 (2011). Under the BIA s decision in Matter of Armendarez, 24 I. & N. Dec. 646 (BIA 2008), noncitizens who break the law by remaining in the United States in violation of their removal orders are permitted to file motions to reopen, but people like Mr. Molina who follow the law are not. Second, although the BIA claims that the departure bar creates a jurisdictional limitation on its authority to sua sponte reopen cases, in numerous cases it has declined to apply the departure bar to motions to reopen filed by noncitizens outside the country, including motions based on intervening case law such as that at issue here. The BIA s selective application of the bar refutes its claim that the bar is jurisdictional, and renders its application to Mr. Molina arbitrary and capricious. See infra Section II.C.1. Finally, even if the departure bar is not arbitrary and capricious, this Court should find that the bar does not apply to Mr. Molina s case. Under wellestablished Ninth Circuit precedent, the departure bar does not apply to deportation orders that were not legally executed, and Mr. Molina s removal executed in violation of the law in effect at the time was not. For this and other reasons, the departure bar is inapplicable here. See infra Section II.C.2. 14

Case: 12-73462 07/10/2013 RESTRICTED ID: 8698917 DktEntry: 17-1 Page: 29 of 72 Because Mr. Molina has diligently pursued every lawful avenue available to challenge his indisputably unlawful removal order, this Court should grant the petition for review. ARGUMENT I. Mr. Molina Was Deported in Violation of the INA There can be no serious dispute at this point that Mr. Molina was deported in violation of the immigration laws. Vartelas confirms that IIRIRA s changes in the treatment of returning lawful permanent residents did not apply to people, like Mr. Molina, who were convicted prior to its passage in 1996. Vartelas, 132 S. Ct. at 1490. Accordingly, upon his return to the United States from his brief trip abroad, Mr. Molina should have been treated as a returning lawful permanent resident rather than an alien seeking admission, and therefore could not have been ordered removed under any ground of inadmissibility. Vartelas, 132 S. Ct. at 1485 ( In sum, before IIRIRA, lawful permanent residents who had committed a crime of moral turpitude could, under the Fleuti doctrine, return from brief trips abroad without applying for admission to the United States. Under IIRIRA, such residents are subject to admission procedures, and, potentially, to removal from the United States on grounds of inadmissibility. ). In addition, as this Court recently recognized in Cardenas-Delgado, 2013 U.S. App. LEXIS 13085 at *3-4, Vartelas s reasoning also establishes that Mr. 15

Case: 12-73462 07/10/2013 RESTRICTED ID: 8698917 DktEntry: 17-1 Page: 30 of 72 Molina should have been permitted to apply for discretionary relief under Section 212(c), even if he had been correctly found deportable. As Cardenas-Delgado recognizes, after Vartelas, it is clear that someone seeking to show that a civil statute is impermissibly retroactive is not required to prove any type of reliance and that the essential inquiry is whether the new statute attaches new legal consequences to events completed before the enactment of the statute. Id. at *19. On that basis, Cardenas-Delgado held that people convicted by jury trial prior to IIRIRA like Mr. Molina could apply for relief under Section 212(c), and that the prior Ninth Circuit law holding otherwise was overruled. Id. Vartelas establishes that Mr. Molina was deported in violation of the laws in effect at the time of his removal proceedings. Because Vartelas is a decision of statutory construction, it establishes the meaning of IIRIRA since the statute s adoption. The Supreme Court has explained that when this Court construes a statute, it is explaining its understanding of what the statute has meant continuously since the date when it became law. Rivers v. Roadway Express, Inc., 511 U.S. 298, 313, n. 12 (1994); see also id. at 312 ( Patterson did not overrule any prior decision of this Court; rather, it held and therefore established that the prior decisions of the Courts of Appeals which read 1981 to cover discriminatory contract termination were incorrect. ) (emphasis in original). Decisions of statutory interpretation are fully retroactive because they do not 16

Case: 12-73462 07/10/2013 RESTRICTED ID: 8698917 DktEntry: 17-1 Page: 31 of 72 change the law, but rather explain what the law has always meant. United States v. Rivera-Nevarez, 418 F.3d 1104, 1107 (10th Cir. 2005) (holding that [b]ecause Leocal involves a question of statutory construction, its holding is retroactively applicable to the time of Rivera-Nevarez s removal hearing ) (citing Rivers); Santiago-Rodriguez v. Holder, 657 F.3d 820, 833 (9th Cir. 2011) ( if the IJ s decision was inconsistent with Altamirano, then the IJ erred as a matter of law; it does not matter that Altamirano was decided after the IJ s decision, because [a] judicial construction of a statute is an authoritative statement of what the statute meant ) (quoting Rivers); United States v. Lopez-Ortiz, 313 F.3d 225, 230 (5th Cir. 2002) ( St. Cyr was a case of statutory interpretation and [a]s such, its holding did not change the law. [ ]. Therefore, St. Cyr established Lopez-Ortiz s eligibility for 212(c) relief at the time of his removal... ) (citing Rivers). 5 For this reason, the Board s suggestion that Vartelas changed (or reinterpreted, AR 3) the law is erroneous as a decision of statutory 5 The Supreme Court has adopted the same principle in the criminal context, in cases where its decisions result in the clarification of federal statutes under which individuals were wrongfully convicted based on the decisions of lower federal courts. See United States v. Bousley, 523 U.S. 614, 620-21 (1998) ( under our federal system it is only Congress, and not the courts, which can make conduct criminal ); see also id. at 625 (Stevens, J., concurring in part and dissenting in part) ( This case does not raise any question concerning the possible retroactive application of a new rule of law, cf. Teague v. Lane, 489 U.S. 288 (1989) because our [prior decision interpreting a federal criminal statute] did not change the law. It merely explained what [the statute] had meant ever since the statute was enacted. ). 17

Case: 12-73462 07/10/2013 RESTRICTED ID: 8698917 DktEntry: 17-1 Page: 32 of 72 interpretation, Vartelas did not change the law, it clarified the statute s correct meaning. Accordingly, the Supreme Court s decision confirms that Mr. Molina was ordered deported in violation of the laws in effect at that time, and that he should have prevailed on the two core challenges to his removal that he raised at every stage in his removal proceedings and on judicial review: that he could not be treated as an alien seeking admission and that, even if he were removable on that basis, he was eligible for a discretionary waiver of removal under Section 212(c). 6 Thus, the only issue in this case concerns whether the agency can provide any remedy to allow Mr. Molina to return to his family in light of the fact that his removal order was entered illegally. 6 See ER 48 (petition for certiorari) ( [T]his Court has never held that reliance on preexisting law is required for a successful claim establishing retroactive effect. ). See also ER 287-89 (opening brief in Case No. 04-71033) (arguing IIRIRA has retroactive effects because it limited lawful permanents residents from travel, and that Mr. Molina conducted his plea negotiations on the assumption that he would suffer no adverse immigration consequences as a result of losing at trial ); 165-72 (reply brief in Case No. 04-71033) ( This substantial travel penalty constitutes a severe retroactive effect. ); 117-45 (opening brief in Case No. 05-74126) (arguing that reasonable reliance is not a prerequisite for finding retroactive effect ); 79-80 (reply brief in Case No. 05-74126) (arguing that Mr. Molina could show reasonable reliance in deciding to go to trial, rather than plea, because at that time the law did not subject people convicted of his crime to mandatory deportation. ); 57-67 (petition for rehearing en banc) (arguing that there is a conflict in Ninth Circuit case law regarding whether petitioner must show reasonable reliance or actual reliance). 18

Case: 12-73462 07/10/2013 RESTRICTED ID: 8698917 DktEntry: 17-1 Page: 33 of 72 II. The BIA Erred in Denying Mr. Molina s Motion to Reopen The BIA erred by denying Mr. Molina s motion to reopen and by declining to reopen his case sua sponte. To understand why, it is helpful to begin with a short summary of the statutory and regulatory history governing motions to reopen. This history demonstrates that the tolling of the motion to reopen deadline is available for errors of law, and that the Board had authority to sua sponte reopen this case even though Mr. Molina is abroad. A. Statutory and Regulatory History Governing Motions to Reopen The history of the law governing motions to reopen is best understood as divided into two periods, pre- and post-iirira. Before IIRIRA, the right to file a motion to reopen was a creature only of regulation. In 1940, the Attorney General first adopted a regulation authorizing motions to reopen at the Board. See 5 Fed. Reg. 3502, 3504 (September 4, 1940). In 1958, the Attorney General revised the regulations and first established what is now referred to as the BIA s sua sponte authority: providing the Board with the power to reopen proceedings on its own motion. See 23 Fed. Reg. 9115, 9118 (Nov. 26, 1958). Since 1952, regulations have barred the BIA from reviewing a motion whether on request or sua sponte for a person who departed the United States. 17 Fed. Reg. 11469, 11475 (December 19, 1952) (codified at 8 C.F.R. 6.2). 19

Case: 12-73462 07/10/2013 RESTRICTED ID: 8698917 DktEntry: 17-1 Page: 34 of 72 From the outset, the BIA understood the departure bar to motions as a limitation on its jurisdiction. See Matter of G- y B-, 6 I. & N. Dec. 159, 159 (BIA 1954). Prior to IIRIRA, Congress enacted a parallel structure for judicial review of deportation orders. In 1961, Congress amended the immigration laws and, inter alia, gave the circuit courts jurisdiction to review final orders of deportation through a petition for review. Act of September 26, 1961, Pub. L. No. 87-301, 5(a), 75 Stat. 650, 651-53 (1961). As with the BIA s jurisdiction over regulatory motions, the 1961 judicial review provision barred the federal courts from reviewing deportation and exclusion orders where the person had departed the country after issuance of the order. See id. (creating former 8 U.S.C. 1105a(c) (1962)). However, the filing of the petition for review also automatically stayed deportation pending the outcome of the petition for review. 8 U.S.C. 1105a(a)(3) (1962). The legal structure governing both motions to reopen and judicial review of removal orders fundamentally changed with the enactment of IIRIRA. Congress for the first time codified the right to file a motion to reopen, along with several of the pre-existing regulatory requirements for filing such motions (e.g., filing deadlines), but did not codify the departure bar. IIRIRA 304 (adding new 8 U.S.C. 1229a(c)(5) and 1229a(c)(6) (1997)). Congress also repealed former 8 U.S.C. 1105a(c) s departure bar to judicial review and 1105a(a)(3) s automatic 20

Case: 12-73462 07/10/2013 RESTRICTED ID: 8698917 DktEntry: 17-1 Page: 35 of 72 stay, and enacted a new set of judicial review provisions that, inter alia, did not include a departure bar. IIRIRA 306(a)-(b) (codified at 8 U.S.C. 1252). Together, these changes inverted certain provisions of the INA, encouraging prompt voluntary departure and speedy government action, while eliminating prior statutory barriers to pursuing relief from abroad. Coyt v. Holder, 593 F.3d 902, 906 (9th Cir. 2010) (citing Nken v. Holder, 129 S. Ct. 1749,1755 (2009)). In other words, IIRIRA enabled individuals to litigate while abroad. Nken, 129 S. Ct. at 1755. Following IIRIRA s passage, the Board recognized the new statutory authority permitting motions to reopen, and at the same time also continued to exercise its pre-existing authority to reopen some cases sua sponte, when the motion did not satisfy the statutory requirements. The Board held that it will exercise its authority to sua sponte reopen in exceptional circumstances, Matter of J-J-, 21 I. & N. Dec. 976, 984 (BIA 1997), and defined exceptional circumstances to include where there has been an intervening judicial decision that establishes a fundamental change in law. See Matter of G-D-, 22. I. & N. Dec. 1132, 1135 (BIA 1999); Matter of X-G-W, 22 I. & N. Dec. 71, 74 (BIA 1998). Based on this standard, the Board has reopened numerous decisions in 21

Case: 12-73462 07/10/2013 RESTRICTED ID: 8698917 DktEntry: 17-1 Page: 36 of 72 recent years on the ground that intervening Board, circuit court or Supreme Court decisions established a fundamental change in law. 7 However, despite IIRIRA s creation of a new statutory motion to reopen that did not codify the departure bar and its recognition that individuals could litigate petitions for review from abroad, the Attorney General promulgated a new set of regulations after IIRIRA s passage that again imposed a post-departure bar nearly identical to those contained in pre-iirira regulations. See 62 Fed. Reg. 10312, 10321, 10331 (Mar. 6, 1997). See also 68 Fed. Reg. 9824, 9830 (Feb. 28, 2003) (redesignating regulation at 8 C.F.R. 1003.2(d)). That regulation applied to all motions to reopen both statutory and sua sponte. In a 2008 decision, the BIA reaffirmed its belief that it lacks jurisdiction over all post-departure motions. See Matter of Armendarez, 24 I.&N. Dec. 646, 660 (BIA 2008). The BIA reasoned that the departure bar is consistent with the statutory scheme, which it characterized as distinguishing between individuals outside the United States and those inside the United States. Id. at 655-57. The courts of appeals, including the Ninth Circuit, have uniformly rejected the Board s position with respect to statutory motions to reopen, and to date, nine 7 See, e.g., In re Vasquez-Muniz, 23 I. & N. Dec. 207 (BIA 2002); In re Katongole, 2009 WL 5252677 (BIA Dec. 9, 2009); In re Sultanyan, 2009 WL 2437155 (BIA July 29, 2009); In re Rodney, 2007 WL4699789 (BIA Nov. 30, 2007); In re Longoria-Ramos, 2007 WL2299627 (BIA July 28, 2007); In re Okogwu, 2007 WL 2074435 (BIA Jun. 13, 2007); In re Bringas, 2004 WL 1398720 (BIA Apr. 14, 2004). 22

Case: 12-73462 07/10/2013 RESTRICTED ID: 8698917 DktEntry: 17-1 Page: 37 of 72 courts have found the departure bar regulation unlawful for motions to reopen filed under 8 U.S.C. 1229a(c)(7). See Reyes-Torres v. Holder, 645 F.3d 1073, 1076-77 (9th Cir. 2011); Luna v. Holder, 637 F.3d 85, 100-02 (2d Cir. 2011); Prestol Espinal v. AG of the United States, 653 F.3d 213, 217-24 (3d Cir. 2011); William v. Gonzales, 499 F.3d 329, 332-34 (4th Cir. 2007); Garcia-Carias v. Holder, 697 F.3d 257, 263-65 (5th Cir. 2012); Pruidze v. Holder, 632 F.3d 234, 237-41 (6th Cir. 2011); Marin-Rodriguez v. Holder, 612 F.3d 591, 593-96 (7th Cir. 2010); Contreras-Bocanegra v. Holder, 678 F.3d 811, 816-19 (10th Cir. 2012) (en banc); Lin v. United States AG, 681 F.3d 1236, 1239-41 (11th Cir. 2012). However, three courts of appeal have rejected the claim that IIRIRA invalidated the departure bar with respect to sua sponte motions to reopen. See Desai v. U.S. AG of the United States, 695 F.3d 267, 270-71 (3d Cir. 2012); Zhang v. Holder, 617 F.3d 650, 660-65 (2d Cir. 2010); Ovalles v. Holder, 577 F.3d 288, 295-96 (5th Cir. 2009). Accord Ortega-Marroquin v. Holder, 640 F.3d 814, 819 (8th Cir. 2011). As explained infra, Mr. Molina does not advance the argument rejected in those cases, and instead advances arguments regarding the scope of the bar, and that its application is arbitrary and capricious that no court has considered. See Section II.C. 23

Case: 12-73462 07/10/2013 RESTRICTED ID: 8698917 DktEntry: 17-1 Page: 38 of 72 B. The BIA Erred in Holding that an Intervening Decision Cannot Constitute a Basis for Equitable Tolling The Board should have found that the 90-day deadline for Mr. Molina to file his motion to reopen was tolled because the basis for that motion the Supreme Court s decision in Vartelas was not available until after the 90 day deadline expired. Three distinct considerations support tolling of the deadline in this case. First, this Court s precedent makes clear that equitable tolling is warranted where a deportation order is based on governmental error, even if such error does not involve affirmative or wrongful misconduct. Second, courts have tolled statutory deadlines for the precise type of error at issue here intervening judicial decisions concerning the interpretation of statutes in two closely related contexts: Rule 60(b) motions for relief from final civil judgments, and post-conviction habeas cases. There is no basis to adopt a different rule in the immigration context, particularly given that this Court frequently relies on habeas case law in applying equitable tolling in immigration cases. Third, the Court should find equitable tolling is available here because Mr. Molina has diligently pursued his claims, including by pressing the exact same arguments that the Supreme Court recognized in Vartelas throughout his removal proceedings and on judicial review, and by promptly filing his motion to reopen. In light of these extraordinary and compelling circumstances, equitable tolling is warranted to permit Mr. Molina to reopen his unlawful deportation order. 24

Case: 12-73462 07/10/2013 RESTRICTED ID: 8698917 DktEntry: 17-1 Page: 39 of 72 1. This Court s Law Governing Equitable Tolling in the Immigration Context Makes Clear that Mr. Molina Timely Filed His Motion The INA provides that a noncitizen has the right to file one motion to reopen within 90 days of entry of a final order of removal. See 8 U.S.C. 1229a(c)(7)(C). Twice in recent years, the Supreme Court has emphasized that the motion to reopen is an important safeguard intended to ensure a proper and lawful disposition of immigration proceedings. Dada v. Mukasey, 554 U.S. 1, 18 (2008) (holding that a grant of voluntary departure does not preclude a noncitizen from withdrawing the motion for voluntary departure and pursuing a motion to reopen); Kucana v. Holder, 558 U.S. 233, 242 (2010) (holding that the BIA s decisions on motions to reopen are subject to judicial review). Likewise, this Court has recognized that Congress codified the motion to reopen, along with other changes to the immigration system in IIRIRA, in part to increas[e] the accuracy of immigration proceedings. Coyt, 593 F.3d at 906. While the immigration statutes require that the motion to reopen be filed within 90 days of the removal order, this Court has found that the 90-day deadline for motions to reopen is subject to equitable tolling. See Socop-Gonzalez v. INS, 272 F.3d 1176, 1187-90 (9th Cir. 2001) (en banc). While equitable tolling is reserved for exceptional circumstances, see Avagyan v. Holder, 646 F.3d 672, 677 (9th Cir. 2011), this Court has flexibly applied equitable tolling in immigration 25