FILED
NOT FOR PUBLICATION
FEB 27 2018
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
OSCAR EDUARDO HUELGAS, No. 15-72518
Petitioner, Agency No. A092-190-293
v.
MEMORANDUM*
JEFFERSON B. SESSIONS III, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted February 12, 2018
San Francisco, California
Before: HAWKINS, BEA, and N.R. SMITH, Circuit Judges.
Oscar Eduardo Huelgas, a native and citizen of Mexico, petitions for review
of the order by the Board of Immigration Appeals (“BIA”) (a) dismissing his
appeal from an immigration judge’s (“IJ”) denial of Huelgas’s motion to reopen
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
and (b) denying Huelgas’s motion to remand. We have jurisdiction under 8 U.S.C.
§ 1252. We grant the petition for review.
1. The BIA abused its discretion in rejecting Huelgas’s request for equitable
tolling of the ninety-day filing deadline. See 8 C.F.R. § 1003.2(c)(2); see also
Iturribarria v. INS, 321 F.3d 889, 897 (9th Cir. 2003) (holding that equitable
tolling is available “when a petitioner is prevented from filing [a motion to reopen]
because of deception, fraud, or error, as long as the petitioner acts with due
diligence in discovering the deception, fraud, or error”). Huelgas requested
equitable tolling, because he alleges the immigration judge committed error by
failing to inform Huelgas that he may have been eligible for relief from removal.
The BIA held that the Huelgas’s claims are not “allegations of ‘deception,
fraud, or error’” but rather “attacks on the underlying removal order.” The
government asserts that the BIA meant that there was no allegation of deception,
fraud, or error, because (at the time of the hearing) Huelgas had not demonstrated
apparent eligibility for § 212(c) relief. However, it is not clear that the BIA found
that Huelgas was not apparently eligible for § 212(c) relief, therefore, we cannot
affirm on this ground. See Navas v. INS, 217 F.3d 646, 658 n.16 (9th Cir. 2000)
(We “cannot affirm the BIA on a ground upon which it did not rely.”).
2
As a general rule, “[i]mmigration judges must adequately explain the
hearing procedures to the alien, and where immigrants proceed pro se, the judges
have a duty to fully develop the record. They are also required to inform
immigrants of any ability to apply for relief from removal and the right to appeal
removal orders.” J.E.F.M. v. Lynch, 837 F.3d 1026, 1036-37 (9th Cir. 2016)
(internal quotation marks and citations omitted); see also C.J.L.G. v. Sessions, 880
F.3d 1122, 1147 (9th Cir. 2018) (noting that an IJ must advise an alien of
“apparent eligibility” to apply for relief from removal (quoting 8 C.F.R.
§ 1240.11(a)(2)). Because “[f]ailure to advise an alien of ‘apparent eligibility’ to
apply for relief [would be] a due process violation,” C.J.L.G., 880 F.3d at 1147-48
(quoting United States v. Rojas-Pedroza, 716 F.3d 1253, 1263 (9th Cir. 2013)), the
BIA erred when it concluded that the IJ’s failure to inform was not an allegation of
“deception, fraud, or error.” See Iturribarria, 321 F.3d at 897.
As a result, the BIA failed provide a reasoned explanation with regard to
whether the IJ committed error when the IJ failed to inform Huelgas that he may
have been eligible for relief from removal. See Movsisian v. Ashcroft, 395 F.3d
1095, 1098 (9th Cir. 2005) (noting that the BIA “abuses its discretion when it fails
to provide a reasoned explanation for its actions”). “Without knowing the basis of
the BIA’s decision, we cannot conduct a meaningful review” of it. Delgado v.
3
Holder, 648 F.3d 1095, 1108 (9th Cir. 2011) (en banc). We therefore remand to
the BIA so that it can provide a reasoned decision.
2. We agree with the government that the BIA also failed to provide a reasoned
decision with regard to (a) whether Huelgas demonstrated due diligence in filing
the motion to reopen, and (b) whether the IJ’s failure properly to advise Huelgas of
possible grounds for relief prejudiced him. Therefore, we also remand these
issues. See Movsisian, 395 F.3d at 1098.1
PETITION FOR REVIEW GRANTED; REMANDED.
1
In light of our disposition, we need not address Huelgas’s remaining issues
raised on appeal.
4