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CA9 on Equitable Tolling, Stop-Time Rule, Evidence: Abbas v. Garland

January 25, 2023 (2 min read)

Abbas v. Garland (unpub.)

"Mohamed Kamal Eldin Abbas (“Abbas”), a native and citizen of Egypt, petitions for review of a decision by the Board of Immigration Appeals (“BIA”) denying his motions to reconsider and to reopen removal proceedings. ... We grant the petition and remand for further proceedings consistent with this disposition. ...  Abbas argued in his motion to reopen that equitable tolling of the time and number bars was warranted due to a change in law that made him newly eligible to apply for cancellation of removal. ... The NTA in Abbas’s case did not specify the date or time for Abbas’s appearance as required by statute. Abbas therefore moved for reconsideration and reopening within one month of the Pereira decision, as he had accrued the necessary period of physical presence since receiving the deficient NTA. The record also indicates that Abbas vigorously pursued his rights prior to Pereira. His actions were diligent, Pereira constituted an extraordinary circumstance, and equitable tolling applies. The BIA allowed for the possibility that the motion was not barred but concluded that Abbas’s cancellation of removal claim nonetheless failed because Abbas had stopped accruing continuous physical presence when the Immigration Judge (“IJ”) entered an order of removal in 2012. A final removal order, however, does not trigger the stop-time rule. Quebrado Cantor v. Garland, 17 F.4th 869, 870 (9th Cir. 2021). This basis for denial is thus contrary to law. Under Pereira and Quebrado Cantor, the record does not reflect any event that would have stopped the accrual of qualifying time since Abbas entered the United States in 2003. ... The BIA also found, without discussion, that Abbas’s evidence was insufficient to warrant a favorable exercise of discretion given that the IJ denied Abbas’s claim for adjustment of status as a matter of discretion in 2011. Because the BIA’s conclusion was arbitrary and not supported by substantial evidence, it abused its discretion. ... The record contains compelling evidence of Abbas’s changed equities since 2011 that supports a favorable discretionary determination, and the BIA was required to consider this evidence. On this record, Abbas has submitted sufficient evidence to warrant the application of equitable tolling. He has also established that he is prima facie eligible for cancellation of removal, see Tadevosyan v. Holder, 743 F.3d 1250, 1255 (9th Cir. 2014) (explaining that “a prima facie case for relief is sufficient to justify reopening”), and that it would be “worthwhile to develop the issues at a hearing,” Matter of L-O-G-, 21 I. & N. Dec. 413, 420 (BIA 1996). We therefore grant the petition and remand to the BIA for proceedings consistent with this disposition."

[Hats way off to David Schlesinger!  Motion to publish?]