NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS AUG 18 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
VAN DUNG LE, AKA Van Lee Dung, No. 19-70995
Petitioner, Agency No. A025-054-726
v.
MEMORANDUM*
WILLIAM P. BARR, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted July 9, 2020
Portland, Oregon
Before: BENNETT and MILLER, Circuit Judges, and NAVARRO,** District
Judge.
Van Dung Le petitions for review the Board of Immigration Appeals’ (BIA)
denial of his motion to reopen. We have jurisdiction under 8 U.S.C. § 1252 and
grant the petition in part and deny the petition in part.
Le based his motion to reopen his 2000 immigration proceeding on a change
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Gloria M. Navarro, United States District Judge for
the District of Nevada, sitting by designation.
in the law brought about by two cases—Lopez v. Gonzales, 549 U.S. 47 (2006),
and Rendon v. Holder, 764 F.3d 1077 (9th Cir. 2014)—that invalidated one of the
two bases for his removal (that he had been convicted of an aggravated felony).
Thus, Le contended he was entitled to “equitable tolling” of the deadline for filing
a motion to reopen. He also asserted that he was entitled to equitable tolling based
on his mental illness. In addition, Le argued that an extraordinary circumstance
justified sua sponte reopening—that he was mentally incompetent during his initial
immigration proceedings. Le’s final argument was that changed country conditions
show he would likely be persecuted upon his return to Vietnam.
Le first sought reopening before an Immigration Judge (IJ) and appealed the
IJ’s denial to the BIA. The BIA affirmed the IJ’s denial. The BIA first affirmed the
IJ’s rejection of Le’s claim to equitable tolling based on Lopez and Rendon, stating
that “[a] subsequent change in the law over 14 years after the issuance of [his] final
removal order is not, however, a valid basis for equitably tolling the 90-day
deadline on a motion to reopen” and that “[t]he [IJ] properly declined to equitably
toll the 90-day deadline for the respondent’s motion for over 18 years.” In doing
so, the BIA cited to the IJ’s entire discussion denying equitable tolling, in which
the IJ determined that a change in the law did not serve as a proper basis for
equitable tolling and that Le did not present evidence that he acted with due
diligence.
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The BIA rejected Le’s claim to equitable tolling due to a mental illness and
further found he did not present evidence that demonstrated that he was mentally
incompetent during his underlying immigration proceeding. The BIA then declined
sua sponte reopening as Le did not present an exceptional circumstance, pointing
in part to his lengthy criminal history. Finally, the BIA affirmed the IJ’s denial of
sua sponte relief based on changed country conditions as the record did not reflect
that Le would be persecuted in Vietnam for being Catholic, mentally ill, or having
applied for asylum elsewhere.
We review the BIA’s “denial of a motion to reopen for abuse of discretion.”
Bhasin v. Gonzales, 423 F.3d 977, 983 (9th Cir. 2005). But our review of the
exercise of sua sponte power is limited only to legal or constitutional error. Bonilla
v. Lynch, 840 F.3d 575, 588 (9th Cir. 2016).
As we have recently confirmed, changes in the law can serve as a basis for
equitable tolling. Lona v. Barr, 958 F.3d 1225, 1230 (9th Cir. 2020). Because the
BIA decided to the contrary, it legally erred. Even though certain changes in the
law can serve as a basis for equitable tolling, a petitioner must still establish that he
was prevented from filing because of a “deception, fraud, or error” and that he
acted with due diligence to discover such a defect. Iturribarria v. INS, 321 F.3d
889, 897 (9th Cir. 2003). Although the BIA does not specifically discuss Le’s due
diligence, it cites with approval the IJ’s opinion, including the IJ’s discussion of
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equitable tolling, in which the IJ analyzed Le’s diligence. The IJ noted, for
example, that Le “does not state when he first learned about Lopez and Rendon,
and does not list what efforts he undertook to rectify the issues he now raises with
respect to his removal proceeding. Thus, the Court is not persuaded that
Respondent acted diligently . . . .” The IJ also expressly found that Le did not show
“that he exercised due diligence during the years between the changes in law and
when he filed his Motion.”
Reasonable minds could perhaps differ as to whether the BIA’s opinion
sufficiently indicates that the BIA adopted the IJ’s due diligence findings so as to
require us to deny the Petition on this ground. However, given that the BIA
committed legal error, that it never used the words “due diligence,” that it did not
explicitly state that it was adopting the IJ’s reasoning, and that it did not cite to
Matter of Burbano, 20 I. & N. Dec. 872 (B.I.A. 1994), we find that the BIA did not
adopt the IJ’s due diligence findings, and thus we may not review those findings.
Cf. Abebe v. Gonzales, 432 F.3d 1037, 1040 (9th Cir. 2005) (en banc) (reviewing
an IJ decision where the BIA cited Burbano and did not express disagreement with
the IJ); Medina-Lara v. Holder, 771 F.3d 1106, 1111 (9th Cir. 2014) (reviewing
the IJ’s decision to the extent incorporated by the BIA). Thus, we remand to the
BIA for it to determine whether Le is entitled to equitable tolling of the deadline
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for filing a motion to reopen in light of Lona, including whether he demonstrated
that he acted with the requisite due diligence.
Le argues that the BIA erred in declining to exercise its sua sponte authority
by improperly finding that there was no fundamental change in the law and failing
to follow “its own precedent.” Le does not raise a legal or constitutional issue for
us to review. The term “fundamental change” is not a “legal premise” but an
“expression of discretion” against which we have no applicable standard to review.
Lona, 958 F.3d at 1235 (quoting Barajas-Salinas v. Holder, 760 F.3d 905, 908 (8th
Cir. 2014)). And our review of the BIA’s sua sponte authority “does not
encompass alleged inconsistencies between the BIA’s grants or denials of
discretionary relief.” Id. at 1238.
Le’s argument that the BIA should have exercised its sua sponte authority to
reopen based on humanitarian asylum also fails as he admits that he did not raise
such a claim before the BIA, and, considering the BIA’s unfettered discretion in
exercising its sua sponte authority, Le identifies no legal or constitutional
requirement that the BIA recognize and raise the issue of humanitarian asylum on
its own.
Finally, the BIA did not abuse its discretion in finding that Le failed to show
that his 2000 immigration proceeding was fundamentally unfair. The record does
not demonstrate that Le was then mentally incompetent or that he had any mental
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illness that resulted in his inability to meaningfully participate in his removal
proceedings. See Matter of M-A-M-, 25 I. & N. Dec. 474, 480 (BIA 2011).
The petition for review is GRANTED in part; DENIED in part;
REMANDED.1
1
Each party shall bear its own costs.
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