Yuzi Cui v. Merrick Garland

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

YUZI CUI, No. 18-72030
Petitioner,
Agency No.
v. A205-542-606

MERRICK B. GARLAND, Attorney
General, OPINION
Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals

Argued and Submitted April 15, 2021
Pasadena, California

Filed September 23, 2021

Before: Richard A. Paez and Lawrence VanDyke, Circuit
Judges, and Sharon L. Gleason, * District Judge.

Opinion by Judge VanDyke;
Partial Concurrence and Partial Dissent by Judge Paez

*
The Honorable Sharon L. Gleason, United States District Judge for
the District of Alaska, sitting by designation.
2 CUI V. GARLAND

SUMMARY **

Immigration

Denying Yuzi Cui’s petition for review of a decision of
the Board of Immigration Appeals, the panel concluded that
the BIA did not abuse its discretion in determining that Cui
did not timely file a motion to reopen and did not commit
legal error in declining to sua sponte reopen her case.

Cui was ordered removed in absentia on March 4, 2014,
and her counsel appealed that order to the BIA. On July 30,
2014, counsel attempted to file before the IJ a motion to
reopen, but the immigration court clerk rejected the motion,
stating that Cui’s counsel was not counsel of record and that,
because there was a BIA appeal pending, the immigration
court was the wrong filing location. Counsel did not refile
the motion, but filed a motion to remand with the BIA. The
BIA returned the case to the immigration court in 2015. In
November 2016, counsel filed a second motion to reopen,
which the IJ denied, and the BIA dismissed Cui’s appeal.

The panel explained that, in In re Guzman-Arguera, 22
I. & N. Dec. 722 (BIA 1999), the BIA held en banc that it is
without authority to consider a direct appeal from an in
absentia order. Rather, a petitioner must first file a motion
to reopen under 8 U.S.C. § 1229a(b)(5)(C)(i), which states
that a petitioner may challenge an in absentia removal order
by filing a motion to reopen within 180 days after the date
of the order of removal if the petitioner demonstrates that the

**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
 CUI V. GARLAND 3

failure to appear was because of exceptional circumstances.
The panel further explained that In re Guzman-Arguera
gives clear notice that the 180-day timeline will not be tolled
or stayed when a petitioner mistakenly files an appeal to the
BIA.

The panel concluded that the IJ’s in absentia order
became final on August 31, 2014—at the end of the 180-day
deadline. At that point, Cui had forfeited her right to seek
reopening before the IJ, as well as her right to appeal to the
BIA. The panel explained that, because in absentia orders
may not be appealed to the BIA without first filing a motion
to reopen before the IJ within 180 days, if the petitioner does
not timely file such a motion before the IJ, the order becomes
final at the end of the 180-day period.

The panel rejected Cui’s arguments that the IJ’s in
absentia removal order was not final and that her
proceedings were still pending. First, Cui argued that she
timely filed her 2014 motion to reopen, such that the case
was still pending before the IJ. Rejecting this argument, the
panel explained that substantial evidence supported the
conclusion that the motion was rejected and not filed.
Second, Cui argued that she timely appealed the IJ’s order,
and the BIA remanded the decision, such that the case was
pending before the IJ. The panel rejected that contention,
explaining that the BIA made no decision on appeal and
explicitly “returned”—rather than “remanded”—the record
to the IJ, that the IJ’s in absentia order was final, and that the
improper appeal did not toll the 180-day deadline.

The panel also concluded that the BIA did not abuse its
discretion in denying Cui’s 2016 motion to reopen,
explaining that the motion was untimely and did not
articulate exceptional circumstances. The panel further
4 CUI V. GARLAND

concluded that the BIA did not abuse its discretion in
declining to equitably toll the 180-day deadline where Cui
did not allege any claims of fraud or deceit. The panel also
concluded that the BIA did not rely on an incorrect legal
premise in declining to sua sponte reopen, observing that,
although Cui claimed prima facie eligibility for adjustment
of status, the BIA is entitled to deny a motion where, as here,
the ultimate relief sought is discretionary. Finally, the panel
noted that, while Cui is arguably a victim of ineffective
assistance of counsel, she failed to raise any such claim and
continued to retain her arguably ineffective counsel before
this court on appeal.

Concurring in part and dissenting in part, Judge Paez
concurred in the majority’s denial of the petition as to Cui’s
2016 motion to reopen, but disagreed with the determination
that the BIA did not abuse its discretion by refusing to rule
on the 2014 motion. Judge Paez wrote that the BIA
erroneously determined that the motion was not timely filed
in the immigration court, explaining that there was no legal
basis for an immigration court clerk to reject a timely motion
to reopen as having been filed in the wrong court. Judge
Paez wrote that the clerk prevented Cui from vindicating her
statutory right to move to reopen her in absentia order, and
the BIA placed her in an impossible bureaucratic Catch-22
and then faulted her for failing to find a way out. Judge Paez
also concluded that the BIA erred by denying sua sponte
reopening because that decision was tainted by its incorrect
determination that Cui failed to timely move to reopen her
in absentia order. Judge Paez would grant the petition and
remand for consideration of Cui’s 2014 motion.
 CUI V. GARLAND 5

COUNSEL

Shun C. Chen (argued), Law Offices of Shun C. Chen
APLC, Irvine, California, for Petitioner.

Erik R. Quick (argued), Trial Attorney; Kiley Kane, Senior
Litigation Counsel; Office of Immigration Litigation, Civil
Division, United States Department of Justice, Washington,
D.C.; for Respondent.

OPINION

VANDYKE, Circuit Judge:

Yuzi Cui petitions for review of the Board of
Immigration Appeals’ (BIA) dismissal of her appeal of the
Immigration Judge’s (IJ) discretionary denial of her 2016
motion to reopen her 2014 removal proceedings.

Cui is a Chinese citizen who overstayed her work visa
and applied for asylum. During the pendency of her
immigration proceeding in 2014, Cui was arrested while out
of state and neither she nor her counsel attended her merits
hearing before the IJ. On March 4, 2014, the IJ ordered her
removed in absentia. Although Cui engaged a second
lawyer, that lawyer’s first act was to incorrectly file an
appeal to the BIA of the in absentia order. In July 2014,
Cui’s counsel attempted to file a motion to reopen before the
IJ, but the immigration court clerk rejected and did not file
the motion to reopen because of the pending appeal and
because another attorney was counsel of record in the
immigration court. Cui’s counsel did not attempt to rectify
his errors or refile the motion to reopen within the statutorily
allotted 180 days to challenge an in absentia order. 8 U.S.C.
6 CUI V. GARLAND

§ 1229a(b)(5)(C)(i). Over two years later in 2016, after the
BIA returned Cui’s case to the IJ for lack of jurisdiction to
consider the erroneous appeal, Cui’s counsel again filed a
motion to reopen before the IJ. Both the IJ and the BIA
dismissed this 2016 motion to reopen as untimely. Cui
petitions for review of the BIA’s dismissal.

Although procedurally complicated, Cui’s claims boil
down to whether the BIA was required to look to the unfiled
2014 motion to reopen while considering the untimely 2016
motion to reopen. The record demonstrates that Cui’s 2014
motion was never filed, and published en banc BIA
precedent long predating this case dictates that the case
progression here did not toll the 180-day deadline to file a
motion to reopen. Thus, the BIA neither abused its
discretion in determining that Cui’s 2016 motion was
untimely nor legally erred by declining to sua sponte reopen
her case.

I. FACTUAL AND PROCEDURAL BACKGROUND

Cui first entered the United States on a work-related B-1
visa in November 2011 and returned to China without filing
for asylum. 1 She then returned to the U.S. on another B-1
visa in March 2012, and applied for asylum in July 2012. In
October 2012, Cui received a Notice to Appear for
overstaying her visa, and conceded removability. Cui’s
counsel of record at the time was personally served in

1
While Cui in her briefing disputes that she returned to China after
entering the U.S. in 2011, her own declaration before the agency states
that she “returned to China” after her first entry into the U.S. in 2011
because she “knew . . . [her] work unit would be negatively affected” if
she “did not return to China.”
 CUI V. GARLAND 7

December 2012 with notice of a hearing set for March 4,
2014.

On February 10, 2014, Cui was arrested in Tennessee
and her travel documents were allegedly confiscated. On
February 26, 2014, Cui’s counsel filed a motion to continue
the March merits hearing. But the IJ did not grant the motion
to continue prior to the hearing. When neither Cui nor her
counsel appeared at the merits hearing on March 4, 2014, the
IJ ordered Cui removed in absentia. Cui’s 180-day time
limit to file a motion to reopen her proceedings to rescind the
IJ’s order began that day. See 8 U.S.C. § 1229a(b)(5)(C)(i).

Cui then engaged her current counsel, Mr. Chen, who
filed an appearance with the BIA, and on April 1, 2014
improperly filed an immediate appeal of the IJ’s in absentia
removal order with the BIA. See 8 U.S.C. § 1229a(b)(5)(C).
The appeal argued that the prior attorney filed a motion to
change venue (which does not appear in the record) due to
Cui’s relocation to Tennessee, and that the IJ improperly
denied the motion to change venue and issued an order of
removal.

More than three months later, on July 30, 2014, Cui’s
counsel attempted to file before the IJ a motion to reopen the
IJ’s in absentia removal order, citing “changed
circumstances” and explaining that Cui now had her travel
documents and could attend a hearing—instead of
explaining the statutorily required “exceptional
circumstances” that prevented Cui (or her counsel) from
appearing at the merits hearing. See 8 U.S.C.
§ 1229a(b)(5)(C)(i), (e)(1). The immigration court clerk
rejected, and did not file, the motion to reopen on August 19,
2014, because (a) the BIA appeal was still pending, so the
court clerk presumably perceived the appeal to have divested
the immigration court of jurisdiction over the case, and
8 CUI V. GARLAND

(b) Mr. Chen was not listed as counsel of record in the
immigration court, and he had not filed the required motion
to substitute as counsel in that court. Cui did not refile that
motion to reopen after it was rejected, and the 180-day
deadline to file such a motion ran on August 31, 2014. See
8 U.S.C. § 1229a(b)(5)(C)(i).

Then, before the BIA on October 3, 2014, Cui’s counsel
filed a motion to remand Cui’s case to the immigration court.
The BIA did not rule on the motion for over a year, and on
October 16, 2015, the BIA returned (but did not “remand”)
Cui’s case to the immigration court, noting that a motion to
reopen before the IJ was the appropriate route to seek
reconsideration of an in absentia removal order in Cui’s
circumstances. See 8 U.S.C. § 1229a(b)(5)(C). In its order,
the BIA cited to In re Guzman-Arguera, 22 I. & N. Dec. 722
(BIA 1999), in which the BIA previously held en banc that
it “is without authority to consider a direct appeal from an in
absentia order,” and, in “return[ing] [the record] to the
Immigration Court without further Board action,” id. at 723,
the BIA majority opinion declined to incorporate the
concurring judges’ recommendations to either “treat[] the
appeal as a motion” or consider the petitioner’s “removal
from the United States . . . stayed,” id. at 724 (Villageliu, J.,
concurring).

A. IJ Motion to Reopen Decision

More than two years after the first attempted motion to
reopen, on November 4, 2016, Cui’s counsel filed a second
motion to reopen, stating Cui’s “U.S. Citizen husband filed
an I-130 petition . . . which was granted” by the U.S.
Citizenship and Immigration Services, and Cui therefore
“intends to file an adjustment of status.” On December 5,
2016, the IJ denied this motion to reopen the in absentia
removal order on the grounds that the motion was filed “two
 CUI V. GARLAND 9

years after the filing deadline” and because the motion also
did not allege “exceptional circumstances” that caused Cui
to miss her original hearing. The IJ further denied sua sponte
reopening, noting Cui did not merit an exercise of discretion
because Cui’s approved I-130 petition was granted “during
her protracted unauthorized presence in the United States”
and the IJ would not “credit [her] for after-acquired equities,
thereby undermining the INA, circumventing the
regulations, and rewarding [her] for disregarding the Court’s
order.”

B. BIA Motion to Reopen Decision

Cui appealed to the BIA, which dismissed the appeal.
Cui then petitioned for review to this court, but this court
granted the government’s unopposed motion to remand back
to the BIA because page 3 of the IJ’s decision was not
included in the Record of Proceeding. Upon reconsideration
of the full IJ opinion, a majority of the BIA panel dismissed
Cui’s appeal.

The BIA addressed Cui’s argument that the IJ erred in
finding her 2014 motion to reopen was not filed and noted
that because the “motion was not accepted for filing” it was
“understandable that the [IJ] did not reference [the merits of
the 2014 motion] in the decision under review.” The BIA
also disagreed with Cui’s claim that the BIA “implicitly
granted tolling” of the 180-day deadline when it returned the
record to the IJ in its October 2015 decision, because “the
decision explicitly state[d] that the record [was] returned . . .
without further action.” The BIA also concluded it would
not equitably toll the deadline because Cui “has not offered
any indication that deception, fraud, error, or ineffective
assistance of counsel precluded her from timely filing her
motion to reopen in the proper location.”
10 CUI V. GARLAND

Lastly, the BIA determined that because the BIA had
returned the record to the IJ after Cui’s motion to remand,
such action did not constitute a remand and the IJ’s in
absentia removal order was “in fact final,” citing the
regulation that defined a final decision of the IJ as one for
which the time to appeal has expired. The BIA thus affirmed
the IJ’s conclusion that the 2016 motion to reopen was
untimely. The BIA also agreed with the IJ that Cui’s 2016
motion to reopen did not allege exceptional circumstances
and was properly denied “for this independent reason.” The
BIA concluded that the IJ did not abuse its discretion in
denying sua sponte reopening because Cui did “not
identif[y] other equities besides potentially becoming
eligible for relief during the time in which she resided in this
country without legal status.”

II. STANDARD OF REVIEW

We have jurisdiction to review final removal orders
under 8 U.S.C. § 1252(a)(1) and to review the BIA’s denial
of a motion to reopen for abuse of discretion. Najmabadi v.
Holder, 597 F.3d 983, 986 (9th Cir. 2010). “Motions for
reopening of immigration proceedings are disfavored,” and
as such, “the Attorney General has ‘broad discretion’ to
grant or deny such motions.” INS v. Doherty, 502 U.S. 314,
323 (1992) (citation omitted). The BIA only abuses its
discretion when the decision is “arbitrary, irrational or
contrary to law.” Azanor v. Ashcroft, 364 F.3d 1013, 1018
(9th Cir. 2004) (citation omitted).

III. MOTION TO REOPEN

8 U.S.C. § 1229a(b)(5)(C)(i) states that a petitioner may
challenge an in absentia removal order by filing “a motion
to reopen . . . within 180 days after the date of the order of
removal if the alien demonstrates that the failure to appear
 CUI V. GARLAND 11

was because of exceptional circumstances.” Over twenty
years ago, the BIA interpreted this provision in an en banc
published opinion to mean that the BIA “is without authority
to consider a direct appeal from an in absentia order” and a
petitioner must first file a motion to reopen before an IJ and
“exhaust[] this avenue of relief” before she may “file an
appeal with the Board.” In re Guzman-Arguera, 22 I. & N.
Dec. at 723. Cui advances a variety of arguments claiming
the IJ’s in absentia removal order was not final and that she
filed a timely motion to reopen, but the record rebuts her
assertions.

A. The IJ’s Removal Order was Final.

A removal order “become[s] final upon the earlier of (i) a
determination by the [BIA] affirming such order; or (ii) the
expiration of the period in which the alien is permitted to
seek review of such order by the [BIA].” 8 U.S.C.
§ 1101(a)(47)(B); see 8 C.F.R. § 1003.39. Because in
absentia removal orders may not be appealed to the BIA
without first filing a motion to reopen the order before the IJ
within 180 days of the order, 8 U.S.C. § 1229a(b)(5)(C)(i);
In re Guzman-Arguera, 22 I. & N. Dec. at 723, if the
petitioner does not timely file such a motion before the IJ the
order becomes final at the end of the 180-day period. “[T]he
period in which the alien is permitted to seek review of such
order by the [BIA]” also expires at that time, id.
§ 1101(a)(47)(B)(ii), because, while the alien could have
sought BIA review after first exhausting her motion to
reopen before the IJ, once the petitioner fails to file a timely
motion with the IJ under § 1229a(b)(5)(C)(i), the ability to
ultimately appeal to the BIA expires along with the 180-day
deadline to seek reopening before the IJ.

In this case, the IJ’s in absentia removal order became
final on August 31, 2014—at the end of
12 CUI V. GARLAND

§ 1229a(b)(5)(C)(i)’s 180-day deadline to file a motion to
reopen with the IJ. At that point, Cui had forfeited not only
her right to seek reopening before the IJ, but also her right to
appeal her in absentia removal to the BIA under the BIA’s
authoritative interpretation of § 1229a(b)(5)(C)(i) in In re
Guzman-Arguera.

Cui disagrees, arguing that the IJ’s in absentia removal
order was not final and that her removal proceeding is still
pending. She advances two arguments for this proposition,
suggesting that she either (a) timely and properly filed a
motion to reopen on July 30, 2014, that is still pending
adjudication by the IJ, or (b) timely appealed the IJ’s in
absentia removal order and the BIA remanded the decision
such that it is currently pending review before the IJ.
Because Cui never properly filed a motion to reopen her
removal proceedings within the statutorily allotted 180 days
from date of the removal order, and because the BIA’s
published en banc precedent dictates that returning the
record in such a case involving an improper appeal does not
toll the 180-day deadline, there are no proceedings pending
before the IJ and Cui’s removal order was final upon
expiration of the 180 days after March 4, 2014.

i. The July 2014 motion to reopen was rejected by
the filing clerk and not filed.

Whether a filing was rejected or accepted is a question
of fact, and we review the BIA’s factual determinations for
substantial evidence. Najmabadi, 597 F.3d at 986. Cui and
her then-counsel had notice of her merits hearing, and
neither attended. Once the IJ entered the in absentia removal
order, Cui had to file a motion to reopen within 180 days to
challenge that order. 8 U.S.C. § 1229a(b)(5)(C)(i). Cui’s
new counsel attempted to file a motion to reopen within the
 CUI V. GARLAND 13

180-day timeline 2 after incorrectly filing an appeal, but
substantial evidence supports the BIA’s conclusion that the
motion to reopen was rejected and not filed by the
immigration court clerk. The record contains a notice
rejecting the attempted filing of the 2014 motion, which was
mailed to Cui’s counsel with fourteen days left before the
180-day window to challenge the in absentia order closed.
The court clerk’s rejection stated that because Cui’s new
counsel was not counsel of record before the IJ he could not
file the motion 3 and, because there was a BIA appeal

2
The 2014 motion to reopen did not explain what “exceptional
circumstances” prevented Cui (or, more importantly, her attorney) from
appearing at the merits hearing. Such “exceptional circumstances” could
include “battery or extreme cruelty to the alien . . . , serious illness of the
alien, or serious illness or death of the spouse, child, or parent of the
alien, but not including less compelling circumstances[] beyond the
control of the alien.” 8 U.S.C. § 1229a(e)(1). Cui’s motion simply stated
that her “travel documents were taken away” and were now “returned”
such that she could now personally “appear . . . for a merit hearing.” The
dissent criticizes us for noting these problems with Cui’s motion,
claiming Cui “plainly provides an account of the circumstances that
prevented her from appearing.” Though we are skeptical these
circumstances constitute “exceptional circumstances” under the statute,
ultimately it doesn’t matter because Cui’s motion gives no explanation
as to why her counsel could not be present.
3
Cui’s new counsel, Mr. Chen, served a copy of an Entry of
Appearance in the immigration court together with the motion to reopen
on July 30, 2014. But Mr. Chen did not submit a written or oral motion
to substitute as counsel, which is procedurally required when a petitioner
is already represented. 8 C.F.R. § 1003.17(b). That reason given by the
clerk’s office for rejecting the motion is supported by the immigration
court’s procedural rules. See id.
14 CUI V. GARLAND

pending, the immigration court was the wrong filing
location. 4

Importantly, Cui did not attempt to refile the July 2014
motion to reopen by the 180-day statutory deadline. Cui’s
counsel had (including the day the rejection notice was
mailed) fourteen days left before the 180 days to refile a
motion to reopen before the deadline would run on August
31, 2014 (which was a Sunday, so he could have filed as late
as Monday, September 1, 2014). In those fourteen days,
counsel did not (a) attempt to dismiss or remand the

4
As already noted, a motion to reopen an in absentia removal
proceeding can only be filed with the immigration court. 8 U.S.C.
§ 1229a(b)(5)(C)(i). But as the court clerk noted, there was an
(improper) appeal pending, so it was understandable that the court clerk
included this point in her rejection notice. Generally speaking, an appeal
to the BIA will divest the IJ of jurisdiction. See 8 C.F.R.
§ 1003.23(b)(1); In re Valles-Perez, 21 I. & N. Dec. 769, 771 (BIA 1997)
(“[O]nce an appeal is filed with the [BIA], the Immigration Court ... loses
jurisdiction over the matter.”); Matter of H-, 20 I. & N. Dec. 611, 612
n.1 (BIA 1992) (“Since the immigration judge had certified his decision
to this Board on March 6, 1992, he no longer retained jurisdiction over
the applicant’s case. . . .”); see also Puc-Ruiz v. Holder, 629 F.3d 771,
782 (8th Cir. 2010) (“Under BIA precedent and established policy, an IJ
loses jurisdiction over a removal case once the alien files a Notice of
Appeal with the BIA. In re Aviles, 15 I. & N. Dec. 588, 588 (BIA 1976);
In re Mintah, 15 I. & N. Dec. 540, 541 (BIA 1975); Board of
Immigration Appeals Practice Manual § 4.2(a)(ii).”).

The dissent objects to our assertion that the immigration court
partially relied on the impending appeal as grounds for rejecting the
filing, maintaining we “rel[y] on facts not in the record” because “there
is no language . . . anywhere in the record indicating that an immigration
court clerk determined that ‘there was an (improper) appeal pending.’”
But the BIA specifically acknowledged and accepted the IJ’s ruling that
the motion was rejected because “the listing of a different attorney from
the respondent’s counsel of record and the pendency of the respondent’s
appeal before the Board” (emphasis added).
 CUI V. GARLAND 15

erroneous appeal pending before the BIA or (b) file a motion
to substitute counsel with the immigration court. “Parties
are expected to exercise due diligence” when an improperly
filed submission is “rejected by the Immigration Court with
an explanation for the rejection. . . . The term ‘rejected’
means that the filing is returned to the filing party because it
is defective and therefore will not be considered by the
Immigration Judge.” Immigration Court Practice Manual,
EOIR 39 (last revised Sept. 30, 2014),
https://www.justice.gov/sites/default/files/eoir/legacy/2014/
09/30/Practice_Manual_1-27-14.pdf (quoting Chapter
3.1(d)(i)) (manual authorized under 8 C.F.R.
§§ 1003.0(b)(1)(i), 1003.9(b)(1)).

Cui’s counsel’s first mistake, filing an improper appeal,
was not alone fatal. Once the immigration court rejected his
filing, all he needed to do was withdraw Cui’s improper
appeal to the BIA, fix the problem with his EOIR-28 form,
and refile with the immigration court within the fourteen
days still left on Cui’s 180-day clock. He never did that. In
fact, he took no action on Cui’s case—in the BIA or
immigration court—until months later. Substantial evidence
supports the BIA’s conclusion that the July 2014 motion to
reopen was properly rejected and never filed. Cui thus did
not properly file a motion to reopen within the statutory
timeline. 5

5
The dissent characterizes Cui as being caught in “an impossible
bureaucratic Catch-22” and maintains there was “nothing Cui could have
done to overcome the clerk’s erroneous determination that the
immigration court was the ‘incorrect filing location.’” To the extent Cui
found herself in a Catch-22, it was entirely of her and her lawyer’s own
making. Had her lawyer not ignored the agency’s long-standing
procedural requirements or properly filed his motion to substitute
16 CUI V. GARLAND

ii. When the BIA “returned the record” to the IJ, it
did not “remand” the case.

The statutory timeline to file a motion to reopen was also
not extended by any procedural action taken by the BIA. As
discussed, Cui initially filed an appeal with the BIA instead
of filing a motion to reopen. After receiving the immigration
court’s rejection of the July 2014 motion to reopen filing,
Cui’s counsel months later on October 3, 2014, filed with the
BIA a motion to remand the appeal back to the IJ (instead of
simply withdrawing the appeal). In responding over a year
later to Cui’s motion to remand, the BIA did not grant the
motion to remand, but instead explained why the appeal was
procedurally incorrect and stated that “the record will be
returned to the Immigration Court without further Board
action.” Cui claims that this statement means the BIA
remanded the case, and thus “[t]he legal status of the case is
[still] pending” because the IJ was required to do something
with the case after the “remand,” which it has never done.

The BIA’s interpretation of the legal force given to a
prior order is a legal determination we review de novo, see
Lopez-Urenda v. Ashcroft, 345 F.3d 788, 791 (9th Cir.
2003), but with deference to the BIA’s interpretation of the
statutes governing its own jurisdiction, see Karingithi v.
Whitaker, 913 F.3d 1158, 1161–62 (9th Cir. 2019) (adopting
the BIA’s interpretation of its “jurisdiction over
[petitioner’s] removal proceedings” because “[t]he BIA’s
interpretations of its regulations are due ‘substantial
deference’” (citation omitted)). Applying deferential
review, “return” and “remand” are different courses of
action by the BIA, and the BIA declined to address the merits

counsel—or corrected these errors before the deadline once he was
made aware of them—none of this would have happened.
 CUI V. GARLAND 17

of the appeal or use the word “remand” in its four-sentence
order.

The BIA noted that Cui “fil[ed] an appeal with the [BIA],
rather than [correctly] . . . filing a motion to reopen with the
[IJ] in accordance with” statutory law, and thus the BIA
“returned” the record rather than granting Cui’s motion to
remand. This language is identical to the language used in
the BIA’s en banc decision cited by the BIA in this case: In
re Guzman-Arguera, 22 I. & N. Dec. 722 (BIA 1999). Under
In re Guzman-Arguera, the BIA “is without authority to
consider a direct appeal from an in absentia order,” and, in
“return[ing] [the record] to the immigration court without
further Board action,” id. at 723, the BIA declined to adopt
the minority’s suggested approach, refusing to “treat[] the
appeal as a motion” or consider the petitioner’s “removal
from the United States . . . stayed” during the improper
appeal to the BIA. Id. at 724 (Villageliu, J., concurring). In
re Guzman-Arguera, which is now over two decades old,
gives clear notice to any immigration practitioner that the
180-day timeline to file a motion to reopen before the IJ will
not be tolled or stayed when a petitioner mistakenly files an
appeal to the BIA instead of correctly filing a motion to
reopen before the IJ. Id. at 723–24.

The BIA thus reasonably treated Cui’s improper appeal
as being withdrawn by Cui’s motion to remand. When an
appeal is withdrawn, “[i]f the record has been forwarded on
appeal, . . . and, if no decision in the case has been made on
the appeal, the record shall be returned and the initial
decision shall be final to the same extent as if no appeal had
been taken.” 8 C.F.R. § 1003.4 (emphases added). As the
BIA made no decision on appeal and explicitly “returned”
the record to the IJ, the IJ’s “initial decision [was] final,” id.,
18 CUI V. GARLAND

not implicitly tolled, 6 and the time in which Cui could
challenge the decision expired 180 days after March 4, 2014,
on August 31, 2014. 8 C.F.R. § 1003.39 (“[T]he decision of
the [IJ] becomes final upon . . . expiration of the time to
appeal. . . .”). 7

B. The November 2016 Motion to Reopen was Untimely.

i. The 2016 Motion to Reopen was untimely and
does not meet the requirements of
§ 1229a(b)(5)(C)(i).

Cui filed a second motion to reopen on November 4,
2016. This motion was filed over two and a half years after
Cui’s March 4, 2014 removal order and was therefore
untimely. 8 U.S.C. § 1229a(b)(5)(C)(i); 8 C.F.R.

6
The BIA rejected Cui’s argument that its “remand” (according to
Cui) served to implicitly toll the 180-day deadline imposed by statute,
noting that “the record [was] returned” and there was no “decision
[made] on [Cui’s] appeal.” Before this court, Cui sets out her
disagreement with the BIA in her “Statement of the Case” section, but
“makes no substantive argument about either ‘implicit tolling’ or the
‘law of the case’ in her brief.” Cui thus waives this issue on appeal. See
Castro-Perez v. Gonzales, 409 F.3d 1069, 1072 (9th Cir. 2005).
7
Although the dissent cites the BIA’s decades-old Guzman-Arguera
decision repeatedly without once disagreeing with it, it never
acknowledges the controlling force of that precedent in this case. If
Cui’s counsel had followed Guzman-Arguera’s clear guidance and
properly filed her motion to reopen before the IJ instead of improperly
trying to directly appeal her in absentia removal to the BIA (and then
treating that improper appeal as tolling her deadline in the immigration
court, contra Guzman-Arguera), her motion to reopen may have been
properly considered by the immigration court, assuming her counsel also
properly substituted as new counsel in the IC.
 CUI V. GARLAND 19

§ 1003.23(b)(4)(ii). 8 The BIA did not abuse its discretion in
denying the untimely motion to reopen. Singh-Bhathal v.
INS, 170 F.3d 943, 946 (9th Cir. 1999).

The 2016 motion to reopen also did not articulate
exceptional circumstances beyond Cui’s control that caused
her to miss her original merits hearing. See 8 U.S.C.
§ 1229a(b)(5)(C)(i), (e)(1). Instead, the motion requested in
a single line that Cui’s removal proceedings be reopened
because her “U.S. Citizen husband filed an I-130 Petition
with CIS, which was granted, and [Cui] intends to file an
adjustment of status with CIS.” It never mentions either the
IJ’s March 2014 in absentia order or Cui’s July 2014 motion
rejected by the immigration court. Cui did not establish in
her 2016 motion to reopen that “exceptional circumstances”
caused her to miss her hearing, and the BIA was thus within
its discretion to deny the motion even if it was timely—

8
Even if we were to credit Cui’s argument that “8 U.S.C.
§ 1229a(c)(7)(C)(i) governs the deadline for Cui’s Second Motion to
Reopen,” meaning that Cui had an additional 90 days to appeal the denial
of filed motion to reopen after the 180-day deadline of August 31, 2014,
Cui’s second motion (filed November 4, 2016) was filed well after that
additional 90-day deadline (November 29, 2014) and was still untimely.
But we do not credit that argument. Section 1229a(c)(7)(C)(i) explicitly
notes that there is an exception to the 90-day deadline where a petitioner
is “filing . . . a motion to reopen an order entered pursuant to [an in
absentia removal order] [which] is subject to the [180-day] deadline
specified [in that] . . . subsection.” Id. § 1229a(c)(7)(C)(iii). Cui thus
only had 180 days to file a motion to reopen based on “exceptional
circumstances,” and never alleged that she did not receive notice of the
merits hearing (which would allow a motion to reopen removal
proceedings to be filed at any time). Id. § 1229a(b)(5)(C)(i), (ii).
20 CUI V. GARLAND

which it wasn’t. Cf. Arredondo v. Lynch, 824 F.3d 801, 806–
07 (9th Cir. 2016). 9

ii. The BIA did not abuse its discretion in declining
to equitably toll the 180-day deadline.

We review BIA decisions to deny equitable tolling of a
motion to reopen for abuse of discretion. Lona v. Barr,
958 F.3d 1225, 1230–32 (9th Cir. 2020). “This court . . .
recognize[s] equitable tolling of deadlines . . . on motions to
reopen or reconsider [where] a petitioner [was] prevented
from [timely] filing because of deception, fraud, or error, as
long as the petitioner acts with due diligence in discovering
the deception, fraud, or error.” Iturribarria v. INS, 321 F.3d
889, 897 (9th Cir. 2003). Cui’s one-sentence 2016 motion
to reopen does not allege any claims of fraud or deceit and
simply asks to reopen the removal order so Cui may “file an
adjustment of status with CIS.” The BIA therefore did not
abuse its discretion in declining to equitably toll the 180-day
deadline to file a motion to reopen where Cui failed to
demonstrate due diligence in discovering any deception,

9
Citing Townsend v. Columbia Operations, 667 F.2d 844, 849 (9th
Cir. 1982) and Rosales-Martinez v. Palmer, 753 F.3d 890, 894–95 (9th
Cir. 2014), Cui argues that precedent exists for the IJ to incorporate
unfiled documents in the record and that the “[t]he legal effect of [Cui’s]
First Motion to Reopen should be considered by this Court to make its
ruling.” In Townsend, the unfiled documents were “identified in the
complaint as writings and are fully described,” 667 F.2d at 848, and
further “were physically in the courtroom at the argument, were referred
to and relied on by both sides in that argument, and were the basis of the
opinion dictated by the court at the end of the argument,” id. at 849. In
Rosales-Martinez, the initial complaint “summarize[d]” the documents
contained in a motion to supplement the record. 753 F.3d at 895. But
Cui never described, or even identified, either the “March 2014 in
absentia order or her [never-filed] July 2014 motion” in her November
2016 motion to reopen.
 CUI V. GARLAND 21

fraud, or error. See Luna v. Holder, 659 F.3d 753, 759 (9th
Cir. 2011).

IV. DENIAL OF SUA SPONTE REOPENING

We may only exercise jurisdiction over BIA decisions
denying sua sponte reopening “for the limited purpose of
reviewing the reasoning behind the decisions for legal or
constitutional error.” Bonilla v. Lynch, 840 F.3d 575, 588
(9th Cir. 2016). Although Cui claims that she demonstrated
prima facie eligibility for adjustment of status, and it was
legal error to deny sua sponte reopening, “where the ultimate
grant of relief is discretionary, as it is in the case of
suspension of deportation, the BIA may determine that the
movant is not entitled to relief even though [s]he meets the
threshold requirements for eligibility.” Sequeira-Solano v.
INS, 104 F.3d 278, 279 (9th Cir. 1997). And in exercising
its discretionary authority, the Court finds that the BIA did
not “rel[y] on an incorrect legal premise” in declining to sua
sponte reopen Cui’s case. See Bonilla, 840 F.3d at 588
(internal quotation marks omitted). 10

V. CONCLUSION

While one could argue that Cui is a victim of ineffective
assistance of counsel, she failed to raise any such claim and

10
In any event, Cui did not demonstrate she was prima facie eligible
for adjustment at the time of her merits hearing, because her marriage to
her U.S. citizen husband occurred after her removal had been ordered.
Cf. Malilia v. Holder, 632 F.3d 598, 600–01 (9th Cir. 2011) (determining
a petitioner had established prima facie eligibility “to apply for an
adjustment of status had the continuance been granted” because “[w]hile
removal proceedings were pending, [petitioner] married . . . a United
States citizen, who immediately filed an I-130 Adjustment of Status
Application on [petitioner’s] behalf” (emphasis added)).
22 CUI V. GARLAND

continues to retain her arguably ineffective counsel before
our court on appeal. Because we are limited to reviewing
the arguments made in the briefs, we conclude both that the
BIA did not abuse its discretion in determining Cui did not
timely file a motion to reopen, and that the BIA did not
commit legal error in declining to sua sponte reopen her
removal proceedings.

PETITION DENIED.

PAEZ, Circuit Judge, concurring in part and dissenting in
part:

I disagree with the majority’s determination that the BIA
did not abuse its discretion by refusing to rule on Cui’s July
30, 2014 motion to reopen. In my view, the BIA erroneously
determined that the motion was not timely filed in the
immigration court. There was no legal basis for an
immigration court clerk to reject Cui’s timely motion to
reopen as having been filed in the wrong court. In so doing,
the clerk prevented Cui from vindicating her statutory right
to move to reopen her in absentia order of removal. The BIA
also erred by denying sua sponte reopening because that
decision was tainted by its incorrect determination that Cui
failed to timely move to reopen her in absentia order. I would
grant the petition for review and remand for consideration of
the merits of Cui’s 2014 motion to reopen. 1

1
I concur in the majority’s denial of the petition as to Cui’s
arguments about the propriety of her 2016 Motion to Reopen.
 CUI V. GARLAND 23

I. The BIA abused its discretion in determining that
Cui’s July 30, 2014 motion to reopen was not timely.

An application for relief from removal may challenge an
in absentia removal order by filing “a motion to reopen . . .
within 180 days after the date of the order of removal if the
[applicant] demonstrates that the failure to appear was
because of exceptional circumstances.” 8 U.S.C.
§ 1229a(b)(5)(C)(i). The BIA has interpreted this provision
to require an applicant to exhaust relief by filing a motion to
reopen with an immigration judge (“IJ”) before appealing to
the BIA. In re Guzman-Arguera, 22 I. & N. Dec. 722, 723
(BIA 1999).

An IJ ordered Cui removed in absentia on March 4, 2014,
so her 180-day window to file a motion to reopen with the IJ
closed on August 31, 2014. Cui sought to comply with the
statutory and BIA requirements by timely filing a motion to
reopen with the IJ on July 30, 2014, articulating the
exceptional circumstances that prevented her from
appearing. The immigration court, however, rejected her
motion because a court clerk determined that the
immigration court was the “incorrect filing location.” 2

2
I agree with the parties and the majority opinion that the form
checklist rejecting Cui’s motion was not completed by an immigration
judge. There is no evidence than an immigration judge ever reviewed
Cui’s 2014 motion to reopen. In the absence of evidence identifying who
completed this form checklist, the BIA majority refers to the rejection by
the “Immigration Court” (as distinct from the IJ). The government’s
answering brief and the majority opinion assume the checklist was
completed by an immigration court clerk. Maj. Op. 13–15. For
consistency with the majority opinion, I also refer to the individual who
completed the form checklist as an immigration court clerk.
24 CUI V. GARLAND

The court clerk’s rejection of the motion for this reason
was wrong as a matter of law. The BIA majority noted as
much when it returned Cui’s April 2014 appeal of the IJ’s in
absentia order. It stated that the proper course of action was
for Cui to file “a motion to reopen with the Immigration
Judge in accordance with . . . 8 U.S.C. § 1229a(b)(5)(C).”
Cui did just that on July 30, 2014. But her motion was
wrongly rejected by an immigration court clerk. As BIA
Member Wendtland, dissenting from the BIA’s denial of
Cui’s 2014 motion to reopen, observed,

Indeed, the rationale for the Immigration
Judge’s rejection of the filing was
questionable, since she relied mainly on a
finding that the Board was the proper filing
location in view of the respondent’s appeal to
us, but we subsequently remanded upon a
determination that the proper forum for
challenging the in absentia order was the
Immigration Court. 3

Rather than account for the immigration court clerk’s
error, the BIA sidestepped the issue, suggested the clerk’s
decision was unreviewable, and in so doing, placed Cui in
an impossible bureaucratic Catch-22 and then faulted her for
failing to find a way out. The BIA reasoned that Cui’s July
30, 2014 motion to reopen

3
Even the government acknowledges the immigration court clerk’s
erroneous rationale for rejecting Cui’s motion to reopen in its answering
brief. Ans. Br. 21 (“[A]lthough the immigration clerk also checked a box
stating that the immigration court was not, at that time, the correct filing
location due to the pending Board appeal, that statement may have been
incorrect.”).
 CUI V. GARLAND 25

was not accepted for filing due to the listing
of a different attorney from the respondent’s
counsel of record and the pendency of the
respondent’s appeal before the Board. Thus,
because this motion never became part of the
record until the respondent presented it with
her appeal, it is understandable that the
Immigration Judge did not reference it in the
decision under review.

In effect, the BIA asserted that because the immigration
court rejected the motion to reopen for filing, it was not part
of the record on appeal. The BIA’s analysis ended there. The
BIA did not state how the filing could be subject to appellate
review. It did not address whether the immigration court
clerk correctly rejected the filing. And the BIA provided no
justification for its refusal to address the propriety of the
immigration court clerk’s rejection of the motion. Yet, at the
same time, the BIA admonished Cui that she was required
to file her motion to reopen with the IJ. Thus, under the
BIA’s own stated reasoning and logic, the immigration court
clerk’s rejection of Cui’s motion because the immigration
court was “the incorrect filing location” was clearly wrong.
The BIA treated the immigration court’s legally erroneous
rejection of Cui’s timely-filed July 30, 2014 motion to
reopen as unreviewable, but simultaneously faulted her for
failing to timely-file a motion to reopen with the
immigration court and, on that ground, rejected all of Cui’s
arguments for relief.

The majority gives three reasons for finding the BIA’s
decision proper. None of them, however, have any support
in law.
26 CUI V. GARLAND

First, the majority posits that Cui’s motion to reopen was
deficient because it “did not explain what ‘extraordinary
circumstances’ prevented Cui (or, more importantly, her
attorney) from appearing at the merits hearing.” Maj. Op. 13
n.2. Cui’s motion plainly provides an account of the
circumstances that prevented her from appearing and her
communication with her counsel prior to the scheduled
hearing. Regardless, the question presented in this appeal is
not about the merits of the motion, but whether the filing was
lawfully rejected. Cui’s filing was not rejected on this basis.

Second, the majority asserts that the immigration court’s
error in rejecting the filing for improper location was
actually Cui’s fault because, “as the court clerk noted, there
was an (improper) appeal pending, so it was understandable”
for the immigration court clerk to reject Cui’s filing for lack
of jurisdiction. Maj. Op. 14 n.4. There are several problems
with the majority’s reasoning. First, the majority relies on
facts not in the record. There is no evidence that the “court
clerk noted” that “there was an (improper) appeal pending.”
Id. The only record evidence related to the rejection of Cui’s
filing appears on a form checklist. The form included a
checkbox marked next to the following entry:

Incorrect Filing Location (Case at BIA) –
This Immigration Court is not, at this time,
the correct filing location. Our records
indicate that the Board of Immigration
Appeals is the correct filing location.

Contrary to the majority’s representation, there is no
language in the form checklist or anywhere in the record
indicating that the immigration court clerk determined that
“there was an (improper) appeal pending” or that the IJ had
been divested of jurisdiction. Maj. Op. 14 n.4. Indeed, the
 CUI V. GARLAND 27

form checklist was a document with no binding legal force.
In particular, the “Incorrect Filing Location” entry that was
marked lacks reference to any source of authority justifying
the rejection on that basis. Notably, the “Incorrect Filing
Location” reason for rejection does not even include a
citation to the nonbinding Immigration Court Practice
Manual (as most of the other entries on the form checklist
do). But even if the checklist entry did include a citation to
the Immigration Court Practice Manual, the checklist entry
still could not stand for the proposition that the court clerk
determined the court had been divested of jurisdiction, as the
majority opinion implies, because there is no legal basis for
an immigration court clerk to make determinations affecting
the immigration court’s jurisdiction. Dep’t of Justice,
Immigration Court Practice Manual, § 1.1(c) (2020),
https://www.justice.gov/eoir/page/file/1258536/download
(“The manual does not extend or limit the jurisdiction of the
Immigration Courts as established by law and regulation.”).

Second, even if the form checklist implied what the
majority suggests it does—that the immigration court clerk
determined that the IJ lacked jurisdiction and, therefore, the
immigration court could reject Cui’s filing—the majority’s
reasoning still impermissibly relies on an invented fiction:
the BIA did not affirm the rejection of the filing on this
ground. Navas v. INS, 217 F.3d 646, 658 n.16 (9th Cir. 2000)
(“[T]his court cannot affirm the BIA on a ground upon which
it did not rely.”). In fact, the BIA did not address, defend,
justify, or affirm the propriety of the immigration court
clerk’s rejection of Cui’s filing at all.

Instead, the BIA accepted the fact of the rejected filing
without any analysis, insulating the court clerk’s rejection of
Cui’s filing from any review. However, neither the majority
nor the BIA cite any legal basis for the court clerk’s authority
28 CUI V. GARLAND

to make a legally wrong, yet unreviewable decision to refuse
to file Cui’s motion. There is simply no support for the BIA’s
view that an unnamed, unidentified immigration court clerk
had unchecked authority to reject any filing for any reason,
and in turn, to restrict Cui’s ability to access the immigration
court’s lawful jurisdiction over her removal proceedings.

Third, and finally, the majority faults Cui because she
“did not attempt to refile the July 2014 motion to reopen by
the 180-day statutory deadline.” Maj. Op. 134. This appears
to be a point about exhaustion of administrative remedies,
although the majority provides no authority to explain its
reasoning and, again, there is no basis for the majority to
invoke this justification because the BIA did not rely on this
reasoning. Navas, 217 F.3d at 658 n.16. Moreover, there is
no indication that re-filing would have changed anything
here. Although Cui could have rectified the first technical
reason for rejecting her motion through refiling—the need
for a motion to substitute counsel—there is nothing Cui
could have done to overcome the clerk’s erroneous
determination that the immigration court was the “incorrect
filing location.” “It is axiomatic that one need not exhaust
administrative remedies that would be futile or impossible to
exhaust.” Singh v. Ashcroft, 362 F.3d 1164, 1169 (9th Cir.
2004).

Thus, by locking Cui into a bureaucratic Catch-22 and
then faulting her for failing to escape, the BIA abused its
discretion. Its decision was “arbitrary, irrational,” and
“contrary to law.” Azanor v. Ashcroft, 364 F.3d 1013, 1018
(9th Cir. 2004) (citation omitted). The BIA’s unreasoned
stamp of approval on the immigration court’s improper
rejection of Cui’s motion to reopen is inconsistent with
statutory and regulatory provisions, and its own precedent,
see 8 U.S.C. § 1229a(b)(5)(C); 8 C.F.R. § 1003.23(b)(4)(ii);
 CUI V. GARLAND 29

In re Guzman-Arguera, 22 I. & N. Dec. at 723, and
irrationally contradicts the BIA’s own reasoning elsewhere
in this case. 4

II. Considering the BIA’s erroneous determination that
Cui’s July 30, 2014 motion was untimely, its
reasoning for rejecting her motion for sua sponte
reopening was legal error.

This court may only exercise jurisdiction over BIA
decisions denying sua sponte reopening “for the limited
purpose of reviewing the reasoning behind the decisions for
legal or constitutional error.” Bonilla v. Lynch, 840 F.3d 575,
588 (9th Cir. 2016). Because the reasoning underlying the
BIA’s denial of sua sponte reopening was tainted by its
erroneous determination that Cui’s 2014 motion to reopen
was untimely, the BIA also erred in denying sua sponte
reopening. 5

4
The majority takes issue with this reference to Guzman-Arguera.
Maj. Op. 18 n.7. As previously noted, In re Guzman-Arguera requires an
applicant to challenge an in absentia removal order by filing a motion to
reopen with an immigration judge, 22 I. & N. Dec. at 723. In that case,
Guzman-Arguera had failed to file a motion to reopen with the
immigration court altogether. Id. Here, Cui attempted to comply with
Guzman-Arguera but was thwarted because the immigration court clerk
improperly rejected her motion to reopen, precluding an immigration
judge from ruling on it.
5
The majority incorrectly concludes that the BIA’s decision on sua
sponte reopening lies beyond the bounds of this court’s review because
the decision was discretionary. Maj. Op. 21. This is incorrect. While the
BIA could have relied on its discretionary authority to deny sua sponte
reopening of Cui’s case, it did not. Instead, the BIA provided legal
reasoning to justify its denial. Those reasons are properly before this
court for review. Bonilla, 840 F.3d at 588.
30 CUI V. GARLAND

The BIA observed that the sole basis for sua sponte
reopening was that “the visa petition of [Cui’s] husband was
approved over 2 years after she was ordered removed.” The
BIA reasoned that in light of “these circumstances and the
lack of any showing that the respondent was prevented from
properly filing a motion to reopen within the required time
frame, we uphold the ruling that the respondent has not
shown that sua sponte reopening is warranted.” In support of
its decision, the BIA cited INS v. Rios-Pineda, 471 U.S. 444,
450–51 (1985) for the proposition that “equities obtained
after the entry of a final deportation order do not create
substantial equities,” and Matter of G-D-, 22 I. & N. Dec.
1132, 1133–34 (BIA 1999) for the proposition that sua
sponte reopening is “reserved for truly exceptional
situations.”

However, because the BIA’s legal analysis was
predicated on its erroneous conclusion that Cui’s July 30,
2014 motion to reopen her in absentia order of removal was
untimely, the BIA’s reasoning was legally erroneous.

First, because Cui’s July 30, 2014 motion to reopen was,
in fact, timely filed, and has yet to be adjudicated by an IJ,
her in absentia order of removal is not final. See 8 U.S.C
§ 1229a(b)(5)(C) (“The filing of the Motion to Reopen
described in [§ 1229a(b)(5)(C)((i) and (ii)] shall stay the
removal of the [applicant] pending disposition of the motion
by the immigration judge.”); 8 C.F.R. § 1003.23(b)(4)(ii).
Thus, the BIA’s application of law to determine that Cui’s
visa petition was “approved over 2 years after she was
ordered removed” and was, thus, not entitled to much weight
in its equities analysis, was incorrect.

Second, the BIA incorrectly assumed that Cui failed to
“properly fil[e] a motion to reopen within the required time
 CUI V. GARLAND 31

frame,” and thus had not shown her situation was a “truly
exceptional situation[]” under Matter of G-D-.

Thus, the BIA’s legal reasoning for denying sua sponte
reopening was predicated on its mistaken determination that
Cui’s July 30, 2014 motion to reopen was not properly filed.
The BIA’s legal reasoning does not hold up when its mistake
is corrected. The BIA legally erred in denying sua sponte
reopening.

* * *

In my view, the BIA abused its discretion by refusing to
rule on Cui’s July 30, 2014 motion to reopen because it
erroneously determined that the motion was not timely filed
in the immigration court. The BIA further erred by denying
sua sponte reopening because its decision was tainted by its
reliance on that incorrect determination. Therefore, I would
grant the petition and remand for a merits determination of
Cui’s 2014 motion to reopen.