Juan Tapia Luna v. Eric H. Holder Jr.

Filing

FILED OPINION (PAMELA ANN RYMER, CONSUELO M. CALLAHAN and SANDRA S. IKUTA) DENIED. Judge: CMC Authoring, FILED AND ENTERED JUDGMENT. [7897375]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JUAN CARLOS TAPIA LUNA,
Petitioner,
v.
ERIC H. HOLDER JR., Attorney
General,
Respondent.





No. 08-71086
Agency No.
A092-317-989
OPINION

On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
March 7, 2011—Pasadena, California
Filed September 19, 2011
Before: Pamela Ann Rymer, Consuelo M. Callahan, and
Sandra S. Ikuta, Circuit Judges.
Opinion by Judge Callahan

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COUNSEL
Gary H. Maunulkin, and Reyna M. Tanner (argued), Fountain
Valley, California, for the petitioner.
Michael F. Hertz, Acting Assistant Attorney General, Terri J.
Scadron, and Corey L. Farrell (argued), Washington D.C., for
the respondent.

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OPINION
CALLAHAN, Circuit Judge:
In both this appeal as well as in Rodriguez-Sanchez v.
Holder, No. 07-71014, which we dispose of in a separate
memorandum disposition filed simultaneously with this opinion, the petitioners seek, inter alia, to reopen their immigration proceedings by raising challenges to, or seeking an
exception to, the April 26, 2005, deadline to seek relief under
former section 212(c) of the Immigration and Nationality Act
(“INA”) established by 8 C.F.R. § 1003.44 (“Special motion
to seek section 212(c) relief for aliens who pleaded guilty or
nolo contendere to certain crimes before April 1, 1997”). We
hold that § 1003.44’s deadline to file special motions to
reopen is a constitutionally-sound procedural rule and that
absent some exceptional circumstances, not present here, petitioners that miss the deadline are not entitled to relief from
that deadline.
I
Because the petitioner’s contentions turn, in part, on the
evolution of the availability of § 212(c) relief, we first briefly
review that history. The Immigration Act of 1917 (“1917
Act”) excluded from admission into the United States several
classes of aliens, “including . . . those who had committed
crimes ‘involving moral turpitude.’ ” INS v. St. Cyr, 533 U.S.
289, 294 (2001) (quoting 39 Stat. 875). The Attorney General,
however, was given discretion to admit an otherwise excludable alien where the alien was returning after a temporary
absence to an unrelinquished domicile of seven years. Id.
The Immigration and Nationality Act of 1952 (“INA”)
replaced the 1917 Act, but retained the 1917 Act’s moral turpitude exclusion and also retained, in INA § 212(c), the Secretary of Labor’s discretionary authority to admit an otherwise
excludable alien where the alien was returning after a tempo-

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rary absence to an unrelinquished domicile of seven consecutive years. Id. at 294-95. Congress subsequently transferred
this authority to the Department of Justice, and thus, the
Attorney General. Id. at 294. Specifically, from its enactment
in 1952 through 1990, § 212(c) of the INA gave the Attorney
General broad discretion to admit an otherwise excludable
alien if the alien temporarily departed the United States voluntarily and sought to return to “ ‘lawful unrelinquished
domicile of seven consecutive years.’ ”1 Id. at 295 (quoting
§ 212(c)).
From 1990 to 1995, Congress limited the Attorney General’s discretion and narrowed the availability of § 212(c) relief
by denying waivers of exclusion of admissibility to felons
who had served a term of imprisonment of at least five years.
See Immigration Act of 1990, Pub. L. No. 101-649, § 511,
104 Stat. 4978, 5052 (1990).2 When the Antiterrorism and
Effective Death Penalty Act (“AEDPA”) was enacted on
April 24, 1996, Congress further restricted the scope of
§ 212(c) relief by denying it to any alien who had been convicted of an aggravated felony or crimes of moral turpitude.
1
The 1990 version of § 212(c); 8 U.S.C. § 1182(c), provided, in full,
that:

Aliens lawfully admitted for permanent residence who temporarily proceeded abroad voluntarily and not under an order of
deportation, and who are returning to a lawful unrelinquished
domicile of seven consecutive years, may be admitted in the discretion of the Attorney General without regard to the provisions
of paragraphs (1) to (30), and (31) of subsection (a) of this section. Nothing contained in this subsection shall limit the authority
of the Attorney General to exercise the discretion vested in him
under section 1181(b) of this title.
2
Amending 8 U.S.C. § 1182 to read:
(a) IN GENERAL.—Section 212(c) (8 U.S.C. 1182(c)) is
amended by adding at the end the following: “The first sentence
of this subsection shall not apply to an alien who has been convicted of an aggravated felony and has served a term of imprisonment of at least 5 years.”

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See AEDPA, Pub. L. No. 104-132, § 440(d), 110 Stat. 1214,
1277 (1996).
Furthermore, when the Illegal Immigration Reform and
Immigrant Responsibility Act of 1996 (“IIRIRA”) was
enacted, § 212(c) relief was replaced by the narrower form of
relief, cancellation of removal. See IIRIRA, Pub. L. No. 104208, 110 Stat. 3009-1, 3009-594 (1996). Cancellation of
removal, as established by § 240A of IIRIRA, permits the
Attorney General to “cancel removal of an alien who has been
a lawful permanent resident for not less than five years, has
resided continuously in the United States for seven years after
having been admitted, and ‘has not been convicted of any
aggravated felony.’ ” Becker v. Gonzales, 473 F.3d 1000,
1003 (9th Cir. 2007) (quoting IIRIRA § 240A(a), 8 U.S.C.
§ 1229b(a)).
However, in 2001, the Supreme Court held that § 212(c)
relief remained available to aliens who pleaded guilty to
waivable criminal offenses before IIRIRA’s effective date in
reliance on the availability of § 212(c) relief. St. Cyr, 533 U.S.
at 326 (holding that Ҥ 212(c) relief remains available for
[petitioners] . . . whose convictions were obtained through
plea agreements and who, notwithstanding those convictions,
would have been eligible for § 212(c) relief at the time of
their plea under the law then in effect”). On September 28,
2004, the Department of Justice’s Executive Office for Immigration Review (“EOIR”) issued a final rule regarding procedures and deadlines for filing motions to reopen to apply for
§ 212(c) relief based on the Supreme Court’s decision in St.
Cyr. See 69 Fed. Reg. 57826-01, 2004 WL 2155250. The
final rule became effective on October 28, 2004 and set a
deadline of April 26, 2005 to file a special motion to reopen
for § 212(c) relief. See id.; 8 C.F.R. § 1003.44(h).
Against this background, we turn to the facts and allegations at issue in this petition.

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II
Juan Carlos Tapia Luna (“Tapia”) is a native and citizen of
Mexico who was admitted to the United States on or about
May 21, 1990 as an immigrant. In September of 1993, Tapia
was convicted in a California state court after pleading guilty
to receiving stolen property in violation of Section 496(a) of
the California Penal Code. He was sentenced to one year and
four months in prison. Because of this conviction, on December 1, 2000, the former Immigration and Naturalization Service (“INS”) commenced removal proceedings against him.
Tapia was charged with removability pursuant to 8 U.S.C.
§ 1227(a)(2)(A)(I), for having committed a crime of moral
turpitude within five years of admission, and for having been
convicted of an aggravated felony offense.
On December 11, 2000, the Immigration Judge (“IJ”) found
Tapia removable as charged. Tapia did not apply for relief
from removal, waived his right to appeal, and was ordered
removed to Mexico. Although Tapia claims that he never
actually left the United States, his departure was witnessed by
a deportation officer in December 2000.
On an unknown date after being removed, Tapia appears to
have illegally reentered the United States. In February of
2007, Tapia, through the law firm that represents him in this
petition: (1) paid the filing fee for a motion to reopen his
immigration proceedings; and (2) filed an I-191 form, Application for Advance Permission to return to Unrelinquished
Domicile, in which he asserted he had maintained residences
in California from 2001 through the date the I-191 form was
filed.3 Tapia thereafter filed the motion to reopen in August
of 2007.
3

Tapia claimed that he lived in La Puente, California, from 2001 to
2003 and Valinda, California, from 2003 through the date of the application. In the same form, Tapia indicated he had never departed the United
States.

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In his August 2007 motion, Tapia argued that in the
December 2000 removal proceeding the IJ violated his due
process rights by not advising him of his right to seek
§ 212(c) relief.4 Tapia recognized that he had missed the April
26, 2005 deadline for filing a special motion to reopen to
request § 212(c) relief, but sought equitable tolling of the
deadline and an order estopping the government from removing him.
Regarding his eligibility for § 212(c) relief, Tapia alleged
that he was eligible in 2000 because by then he had over
seven years of domicile in the United States and he had not
been charged with an aggravated felony. He argued that the
IJ erred in failing to advise him of his eligibility for § 212(c)
relief, and therefore, equitable tolling of the deadline for filing
a motion to reopen was proper. He also asserted that his failure to file a special motion to reopen by the April 26, 2005
deadline should be equitably tolled because he was not
informed of his right to seek § 212(c) relief by his counsel
until approximately July 31, 2006, and he then filed the
motion to reopen within 90 days of that date.
The IJ denied Tapia’s motion to reopen on October 22,
2007. Although the motion was styled as a motion to reopen
to the BIA, because the thrust of Tapia’s argument was that
he was entitled to § 212(c) relief, the IJ treated Tapia’s motion
as a special motion to reopen. The IJ first found that Tapia’s
claim that he had not been charged as an aggravated felon was
clearly in error, and that Tapia was removable based on both
his aggravated felony conviction and the fact that receiving
stolen property is a crime of moral turpitude. In addition, the
IJ determined that there was no affirmative misconduct by the
IJ in 2000, noting that Tapia was not eligible for § 212(c)
relief at that time because he was not given permanent legal
resident status until May 1990, and thus had not accrued the
4

The same IJ presided over both Tapia’s 2000 and 2007 proceedings.

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requisite seven years of domicile in 1993 when he entered his
plea.
The IJ also concluded that Tapia was not eligible for
§ 212(c) relief at the time of his removal hearing in 2000
because § 212(c) had been repealed. Further, the IJ concluded
that he could not have informed Tapia of the motion to reopen
filing deadline in 2000 because the regulation establishing
that time limit had not yet been promulgated. Also, the IJ
noted that denial was warranted because, although Tapia
denied it, if what Tapia indicated in his I-191 form was true,
he illegally reentered the United States shortly after he was
removed in 2000.
Finally, the IJ denied Tapia’s motion to reopen on the basis
that it was untimely. Tapia missed the April 26, 2005, deadline for filing a special motion to reopen because he did not
file a motion until August of 2007. The IJ rejected Tapia’s
assertion that he filed his motion to reopen within 90 days of
learning of his right to seek relief from his counsel. The IJ,
noting numerous errors in Tapia’s motion, determined that
Tapia may have misstated the date he learned of his eligibility
for § 212(c) relief. Tapia’s motion asserted that Tapia learned
of this right to relief on July 31, 2006, but the IJ noted that
Tapia paid the fee to file the motion to reopen in February of
2007, then filed the motion to reopen in August of 2007, and
that neither of these dates was within 90 days of July 31,
2006.
Tapia timely appealed to the BIA, which conducted its own
review and dismissed his appeal on February 19, 2008. Like
the IJ, the BIA considered Tapia’s motion as a special motion
to reopen. The BIA first rejected Tapia’s due process argument that the IJ that ordered him removed in 2000 engaged
in affirmative misconduct (and therefore equitable tolling was
warranted) by failing to advise Tapia that he was eligible for
§ 212(c) relief. Like the IJ, the BIA found that Tapia had not
met § 212(c)’s seven-year residency requirement, and that the

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time limit for filing a special motion to reopen for § 212(c)
relief had not yet been established. The BIA also concluded
that Tapia missed the April 26, 2005 filing deadline and that
there was no basis for equitable tolling as (1) the IJ did not
err by failing to advise Tapia he was eligible for § 212(c)
relief, and (2) Tapia had not demonstrated that he had exercised due diligence in discovering the deadline. Furthermore,
the BIA noted that Tapia had not offered any new facts that
were unavailable at the time of the removal hearing, and was
otherwise ineligible because he had been removed in December of 2000.
Tapia then timely petitioned this court for review.
III
“This court reviews BIA denials of motions to reopen for
abuse of discretion.” Iturribarria v. INS, 321 F.3d 889, 894
(9th Cir. 2003). “The BIA abuses its discretion when it acts
arbitrarily, irrationally, or contrary to the law.” Movsisian v.
Ashcroft, 395 F.3d 1095, 1098 (9th Cir. 2005) (quoting LainzOrtiz v. INS, 96 F.3d 393, 395 (9th Cir. 1996).
Here, Tapia contends that: (a) in 2000, the IJ violated his
due process rights and engaged in affirmative misconduct by
failing to advise him that he was eligible for § 212(c) relief;
(b) whether or not the IJ erred in his § 212(c) determination,
Tapia was entitled to equitable tolling of the deadline for filing a special motion to reopen; and (c) § 1003.44 is unconstitutional on its face and as applied to him. We find none of
Tapia’s arguments persuasive.
First, even assuming that Tapia “relied” on the availability
of § 212(c) relief when he pleaded guilty, and was therefore
eligible for § 212(c) relief, he missed the deadline for filing
a motion to reopen and we find no basis here for extending
equitable tolling of the April 26, 2005 deadline for special
motions to reopen based on any error by the IJ. Second, even

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assuming that Tapia has not waived his challenge to the constitutionality of § 1003.44, the regulation is not unconstitutional; rather, it provides due process in the form of a remedy
to those aliens who were denied the § 212(c) relief that they
were entitled per St. Cyr. Finally, we find no basis for equitable tolling of the April 26, 2005 deadline, given that he failed
to file his motion to reopen within 90 days of when he knew
or should have known of his claim.
A
Tapia asserts that he is entitled to tolling of the April 26,
2005 deadline for filing special motions to reopen for § 212(c)
relief and of the 90-day deadline for motions to reopen
because the IJ in 2000 violated his due process rights and
engaged in affirmative misconduct by failing to advise Tapia
that he was eligible for § 212(c) relief. While we have deep
reservations as to whether Tapia was entitled to be advised by
the IJ as to the availability of § 212(c) relief in 2000 because
§ 212(c) relief had been repealed and St. Cyr had yet to be
decided, we do not need to reach that issue. Even assuming
that the IJ’s failure to advise Tapia of his eligibility for
§ 212(c) relief tolled the deadline for filing a motion for
§ 212(c) relief, Tapia still failed to file his motion to reopen
in a timely manner.
Equitable tolling may apply “when a petitioner is prevented
from filing because of deception, fraud, or error, as long as
the petitioner acts with due diligence in discovering the
deception, fraud, or error.” Iturribarria, 321 F.3d at 897; see
also Singh v. Gonzales, 491 F.3d 1090 (9th Cir. 2007) (to
warrant equitable tolling of a filing deadline, the petitioner
must show that he has acted with due diligence). In particular,
equitable tolling will apply “where, despite all due diligence,
[the party invoking equitable tolling] is unable to obtain vital
information bearing on the existence of the claim.” SocopGonzalez v. INS, 272 F.3d 1176, 1193 (9th Cir. 2001) (internal quotations omitted).

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B
Assuming that the IJ’s failure to advise Tapia of his right
to § 212(c) relief tolled the time for filing a motion to reopen,
Tapia’s first challenge is to show that the time for filing such
a motion did not expire on April 26, 2005, pursuant to
§ 1003.44. Tapia contends that § 1003.44, which established
the procedures for filing motions to reopen to apply for
§ 212(c) relief, and set a deadline of April 26, 2005 to file a
special motion to reopen, is unconstitutional on its face and
as applied to him.
Tapia asserts that § 1003.44 is unconstitutional on its face
because “it irrationally disallows any alien not made aware of
the time limitation from seeking a reopening” and because it
did not require the government to notify aliens of their right
to seek reopening. Tapia also argues that the regulation is
unconstitutional as applied to him because the IJ did not
notify him of his right to seek reopening.
[1] Section 1033.44 was enacted into law in 2004 and the
April 26, 2005, deadline for filing special motions to reopen
was set for approximately a year and a half later. The law was
enacted by Congress and the regulation was published in the
Federal Register. Tapia does not explain why this was a constitutionally insufficient notification and offers no case law to
support this contention. The Supreme Court has stated that
“the INA provides that [t]he Attorney General shall be
charged with the administration and enforcement of the statute and that the determination and ruling by the Attorney
General with respect to all questions of law shall be controlling.” INS v. Aguirre-Aguirre, 526 U.S. 415, 424 (1999)
(quoting 8 U.S.C. § 1103(a)(1) (1994 ed., Supp. III)) (internal
quotations omitted). Furthermore, “Congress has provided
that the appearance of rules and regulations in the Federal
Register gives legal notice of their contents.” Fed. Crop Ins.
Corp. v. Merrill, 332 U.S. 380, 385 (1947). Because Tapia

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had sufficient notice of the deadline for relief, he cannot claim
his due process rights were violated due to lack of notice.
[2] We also reject Tapia’s argument that EOIR could not
constitutionally set a deadline for the relief provided by St.
Cyr. We hold that the April 26, 2005, deadline was a proper
procedural rule made by the EOIR and entitled to deference.
In doing so, we agree with the Seventh Circuit’s reasoning in
Johnson v. Gonzales, 478 F.3d 795, 799 (7th Cir. 2007). In
Johnson, the Seventh Circuit held that the deadline was
proper under a grant of authority to the Attorney General
under the INA, noting “in general, the formulation of procedures is left to the discretion of the agencies with responsibility for substantive judgements.” Id. (citing Vermont Yankee
Nuclear Power Corp. v. NRDC, 435 U.S. 519 (1978)). When
the EOIR enacted § 1003.44, it did not eliminate relief; it simply established a time frame in which relief under this theory
was to be requested. See 8 C.F.R. § 1003.44(h). The Johnson
court found that the deadline was made within the “reasonable
rule-making authority of the Attorney General,” and that such
deadlines were common in other areas of procedural law.
Johnson, 478 F.3d at 799-800. We agree, and see no basis for
Tapia’s argument that due process requires an alien who is not
notified of the alien’s right to § 212(c) relief be permitted to
seek such relief “at any time.”
[3] Section 1033.44 was enacted by the Attorney General
on the basis of the Supreme Court’s decision in St. Cyr and
published in the Federal Register, so the deadline was presumptively constitutional and all aliens were therefore also
presumptively deemed to have been given notice of the deadline. Tapia does not present a compelling argument to the
contrary. Moreover, to the extent that his complaint is that he
and other similarly-situated aliens were ignorant of the deadline, Tapia runs afoul of the rule that ignorance of the law is
not an excuse where one has constitutionally sufficient notice.
See, e.g., United States v. Clark, 435 F.3d 1100, 1109 n.13
(9th Cir. 2006).

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C
[4] Even if we were to assume that Tapia’s failure to comply with the April 26, 2005, deadline for filing special
motions to reopen could be excused based on an equitable
tolling theory, there is no ground to equitably toll the filling
deadline here because Tapia has not shown due diligence. See
Socop-Gonzalez, 272 F.3d at 1193 (“we will apply equitable
tolling in situations where, despite all due diligence, [the party
invoking equitable tolling] is unable to obtain vital information bearing on the existence of the claim.”) (quoting Supermail Cargo, Inc. v. United States, 68 F.3d 1204, 1207 (9th
Cir. 1995) (internal quotation marks omitted). Tapia’s assertion that he filed his August 2007 motion to reopen within
ninety days of learning of his right to § 212(c) relief is not
supported by the record. Citing Iturribarria, 321 F.3d at
897-99, Tapia asserts he is entitled to tolling of the period for
filing special motions to reopen because the IJ did not advise
him of his right to seek § 212(c) relief and he only learned of
his right from his attorney within 90 days of the filing of his
motion to reopen in August of 2007.5
[5] Tapia, however, acknowledges that, through counsel,
he paid the fee to file a motion to reopen in February 2007,
but he did not actually file his motion to reopen until August
30, 2007, more than six months later. Given that Tapia,
through counsel, clearly anticipated the filing of a motion to
reopen in February, 2007, there is no excuse for his failure to
file his motion to reopen within 90 days of February 2007.
5

Tapia contends that his statement, in his motion to reopen to the BIA,
that he learned of his right to seek § 212(c) relief “on or about July 31,
2006” was a typographical error. He asserts that he was actually informed
of his eligibility for § 212(c) relief after he hired counsel to review his
case in 2007, although he does not provide a specific date when this
occurred. Furthermore, there is no affidavit or declaration, from either
Tapia or his attorney, specifying when Tapia retained counsel, or allegedly
learned of his eligibility for § 212(c) relief.

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CONCLUSION
[6] We hold that the BIA did not abuse its discretion in
denying Tapia’s petition. Even assuming that Tapia was entitled to rely on the availability of § 212(c) relief when he pled
guilty in 1993, and that he achieved the requisite seven years
of unrelinquished domicile by the time of his removal proceedings in 2000, Tapia still had the burden to establish that
he was entitled to equitable tolling of the deadlines for a special motion to reopen for St. Cyr relief or a motion to reopen.
We hold that Tapia has not made a compelling showing. We
hold that § 1033.44 is a constitutionally sound regulation that
provides due process in the form of a remedy to those aliens
that were denied § 212(c) relief to which they were entitled
under St. Cyr, but that Tapia failed to demonstrate that he
exercised due diligence in discovering the deadline for filing
a special motion to reopen and is not otherwise entitled to
tolling of the deadline for a motion to reopen. See Iturribarria, 321 F.3d at 897-98.
DENIED.