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U.S.

Department of Justice

Executive Office for Immigration Review

Board ofImmigration Appeals


Office of the Clerk

5107 Leesburg Pike, Suite 2000


Falls Church, Virginia 22041

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Mehr, Michael Kenneth OHS/ICE Office of Chief Counsel - EAZ
Law Offices of Michael K. Mehr Eloy Detention Ctr, 1705 E. Hanna Rd
100 Doyle St., Ste. A Eloy, AZ 85131
Santa Cruz, CA 95062

Name: LOPEZ-MAZARIEGOS, CARLOS A 044-623-540

Date of this notice: 10/26/2017

Enclosed is a copy of the Board's decision and order in the above-referenced case.

Sincerely,

Donna Carr
Chief Clerk

Enclosure

Panel Members:
Cole, Patricia A.
Pauley, Roger
Wendtland, Linda S.

Userteam: Docket

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Cite as: Carlos Lopez Mazariegos, A044 623 540 (BIA Oct. 26, 2017)
U.S. Department of Justice Decision of the Board oflmmigration Appeals
Executive Office for Immigration Review

Falls Church, Virginia 22041

File: A044 623 540 - Eloy, AZ Date:

OCT 2 6 2017
In re: Carlos LOPEZ-MAZARIEGOS

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IN REMOVAL PROCEEDINGS

APPEAL

ON BEHALF OF RESPONDENT: Michael K. Mehr, Esquire

ON BEHALF OF DHS: Matthew Hanson


Assistant Chief Counsel

APPLICATION: Reopening

Considering the totality of circumstances presented in this record, including the recent issuance

of the United States Supreme Court's decision in Esquivel-Quintana v. Sessions, 137 S. Ct. 1562

(2017), the application of which would negate the respondent's deportability under section

237(a)(2)(A)(iii) of the Immigration and Nationality Act, 8 U.S.C. 1227(a)(2)(A)(iii)(2012), we

will reverse the Immigration Judge's November 18, 2016, decision to deny the motion to reopen

these proceedings under the provisions of 8 C.F.R. 1003.23(b)(1)(2017). This record will be

remanded to the Immigration Judge to terminate proceedings.

ORDER: The record is remanded to the Immigration Judge for further proceedings consistent

with the foregoing opinion.

Board Member Roger A. Pauley respectfully dissents. The motion to reopen tlie respondent's
2005 administratively final order of removal was not filed until 2016, approximately 8 years after
the Ninth Circuit held that the statute of conviction was not an aggravated felony. The fact that
the Supreme Court has since essentially endorsed that holding is irrelevant and does not excuse
the respondent's lack of diligence. I therefore agree with the Immigration Judge's discretionary
denial of the motion.
Cite as: Carlos Lopez Mazariegos, A044 623 540 (BIA Oct. 26, 2017)
?llft
. ... . ..

A :.f.

UNITED STATES DEPARTMENT OF JUSICE


EXECUTIVE OFFICE FOR IMMIGRATION REVIEW

.
IMMIGRATION COURT
1705 E. HANNA RD.
ELOY, AZ 85131
.. ..
..... , :.!

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'

Law Offices of Michael K. Mehr 1. '.


1
Mehr, Michael Kenneth . .

. 100 Doyle St., Ste. A


Santa Cruz, CA 95062 ,

IN THE MATTER OF FILE A 044-623-540 DATE: Nov 18, 2016


LOPEZ-MAZARIEGOS, CARLOS

UNABLE TO FORWARD - NO ADDRESS PROVIDED


.,

i ATTACHED IS A COPY OF THE DECISION OF THE IMMIGRATION JUDGE. THIS DECISION . : ,/ '
IS FINAL UNLESS AN APPEAL IS FILED WITH THE BOARD OF IMMIGRATION APPEALS
WITHIN 30 CALENDAR DAYS OF THE DATE OF THE MAILING OF THIS WRITTEN DECISION
-
SEE THE ENCLOSED FORMS AND INSTRUCTIONS FOR PROERLY PREPARIG YOUR APPEAL.
YOUR NOTICE OF APPEAL, ATTACHED DOCUMENTS, AND FEE OR FEE WAIVER REQUEST
MUST BE MAILED TO: BOARD OF IMMIGRATION APPEALS
OFFICE OF THE CLERK -

5107 Leesburg Pike, Suite 2000


FALLS CHURCH, VA 22041

ATTACHED IS A COPY OF THE DECISION OF THE IMMIGRATION JUDGE AS THE RESULT


'.'OF YOUR FAILURE TO APPEAR AT YOUR SCHEDULED DEPORTATION OR REMOVAL HEARING.
.THIS DECISION IS FINAL UNLESS A MOTION TO REOPEN IS FILED IN ACCORDANCE
WITH SECTION 242B(c)(3) OF THE IMMIGRATION AND NATIONALITY ACT, 8 U.S.C.
SECTION 1252B(c) (3) IN DEPORTATION PROCEEDINGS OR SECTION 240(c) (6),
8 U.S.C. SECTION 1229a(c)(6) IN REMOVAL PROCEEDINGS. If YOU FILE A MOTION
TO REOPEN, YOUR MOTION MUST BE FILED WITH THIS COURT: \,

IMMIGRATION COURT
1705 E. HANNA RD.
ELOY, AZ 85131

OTHER:

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UNITED STATES DEPARTMENT OF JUSTICE


EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRATION COURT
1705 EAST HANNA ROAD, SUITE 366
ELOY, ARIZONA 85131

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IN THE MATTER OF: ) MOTION TO REOPEN
)
LOPEZ-MAZARIEGOS, Carlos ) FILE NO. A044-623-540
)
RESPONDENT ) DATE: November 18, 2016
)

MOTION: Respondent's Motion to Reopen Removal Proceedings

ON BEHALF OF THE RESPONDENT: ON BEHALF OF THE DEPARTMENT:


Michael K. Mehr, Esquire Assistant ChiefCounsel
100 Doyle Street, Suite A Department of Homeland Security
Santa Cruz, California 95062 1705 East Hanna Road
Phoenix, AZ 85131

MEMORANDUM DECISION AND ORDER OF THE IMMIGRATION COURT

I. PROCEDURAL HISTORY

The above-named respondent is a native and citizen of Guatemala. (Exh. 1, Form I-862
(Nov. 3, 2004).) On November 3, 2004, the Department of Homeland Security ("OHS" or "the
Department") issued a Notice to Appear ("NTA") against the respondent. (Id.) The NTA
alleged the following:

1. The respondent is not a citizen or national of the United States;


2. The respondent is a native of Guatemala and citizen of Guatemala;
3. He was admitted to the United States at Los Angeles, California on or about July 24,
1994, as a lawful permanent resident;
4. He was, on June 26, 200l, convicted in the California Superior Court, Santa Clara
County, for the offense of Unlawful Sexual Intercourse with a Minor, in violation of
Section 261.5(c) of the California Penal Code.

(Id.)

Based on these allegations, OHS charged the respondent as being subject to removal from
the United States pursuant to section 237(a)(2)(A)(iii) of the Immigration and Nationality Act
("INA" or "the Act"), in that the respondent,

at any time after admission, [was] convicted of an aggravated felony as defined in


Sectionl0l(a)(43)(A) of the Act, a law relating to sexual abuse of a minor.
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(Id.)

The respondent appeared, with counsel, before this Court on November 24, 2004,
wherein the Immigration Judge confirmed with counsel for respondent if the respondent
understood the nature and purpose of the instant proceedings and if he understood his legal rights
in the proceedings. (Hr. (Nov. 24, 2004).) Counsel for respondent affirmed that the respondent
understood the nature and purpose of the proceedings and understood his rights. (Hr. (Nov. 24,

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2004).) The hearing was continued to allow for attorney preparation. (Id.) On November 29,
2005, the respondent, through counsel, admitted allegations 1 to 3 of the NTA, and denied the
fourth allegation and charge of removability. (Hr. (Nov. 29, 2004); Exh. 1.) On February 2,
2005, the hearing on the merits was continued to allow respondent to cure deficiencies in his 1-
589 application.(Hr. (Feb. 2, 2005).) The final hearing on the merits curred on March 3,
2005, wherein the Immigration Judge sustained the charge of removability, denied the
respondent's request for relief, and ordered his removal. (Hr. (Mar. 3, 2005).)

On September 29, 2016, the Court received a Motion to Reopen, through counsel, from
the respondent. (Resp't Mot. to Reopen (Sept. 29, 2016).) The Department submitted an
opposition to the respondent's motion to reopen on October 18, 2016. (DHS Opp'n. (Oct. 18,
2016).) The Court carefully considered the motion and denies the respondent's request for the
following reasons.

II. STATEMENT OF LAW

An Immigration Judge upon his or her motion, or upon motion of the Department or an
alien, may reopen any case in which he or she has made a decision, unless jurisdiction is vested
with the Board of Immigration Appeals ("BIA" or "the Board"). 8 C.F.R. 1003.23(b)(l).
Except when certified to the Board, the decision of the Immigration Judge becomes final upon
waiver of appeal or upon expiration of the time to appeal if no appeal is taken, whichever occurs
first. 8 C.F.R. 1003.39.

A motion to reopen must be filed within ninety (90) days of the date of entry of a final
administrative order of removal, deportation, or exclusion, or on or before September 20, 1996,
whichever is later. INA 240(c)(7)(C)(i); 8 C.F.R. 1003.23(b)(l). The time limitation does
not apply if the basis of the motion to reopen is to apply for asylum under section 208 of the Act,
withholding of removal under section 241(b)(3) of the Act, or withholding of removal under the
Convention Against Torture, if such application is based on "changed country conditions arising
in the country of nationality or the country to which removal has been ordered." 8 C.F.R.
1003.23(b)(4)(i). The evidence must be material and could not have been available,
discoverable, or presented at the previous proceedings. (Id.) A change in personal
circumstances, such as a change in health, does not satisfy the requirement for a change in
country conditions. Almaraz v. Holder, 608 F.3d 638, 640 (9th Cir. 2010).

A motion to reopen must state the new facts that will be proven should such motion be
granted, and must be supported by affidavits or other evidentiary material. INA 240(c)(7)(B);
8 C.F.R. 1003.23(b)(3). "A motion to reopen will not be granted unless the Immigration Judge
is satisfied that evidence sought to be offered is material and was not available and could not

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have been discovered or presented at the fonner hearing." 8 C.F.R. 1003.23(b)(3). The
decision to grant or deny a motion to reopen is within the discretion of the Immigration Judge. 8
C.F.R. 1003.23(b)( l )(iv).

Where an alien moves to reopen for the purpose of acting on an application for relief, the
motion must be accompanied by the appropriate application for relief and all supporting
documents. 8 C.F.R. 1003.23(b)(3). "A motion to reopen for the purpose of providing the

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alien an opportunity to apply for any fonn of discretionary relief will not be granted if it appears
that the alien's right to apply for such relief was fully explained to him or her by the Immigration
Judge and an opportunity to apply therefore was afforded at the hearing, unless the relief is
sought on the basis of circumstances that have arisen subsequent to the hearing." 8 C.F.R.
1003.23(b)(3); see qlso Matter ofG-Q-, 9 l&N Dec. 376 (BIA 1976). The alien must establish
prima facie eligibility for the relief sought, by showing that there is a reasonable likelihood of
success on the merits so as to make it worthwhile to develop the issues further at an individual
hearing. See INS v. Rios-Pineda, 471 U.S. 444, 449 (1985); Platero-Reymundo v. INS, 807 F.2d
865, 867 (9th Cir.1987); Matter ofL-0-G-, 21 I&N Dec. 413, 419 (BIA 1996).

A motion to reopen may be equitably tolled "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 v. INS, 321 F.3d 889, 897 (9th Cir.
2003). Ineffective assistance of counsel is one basis for e,;:quitable tolling, but to qualify, the
respondent must establish: "(a) that he was prevented from timely filing his motion due to prior
counsel's ineffe_ctiveness; (b) that he demonstrated due diligence in discovering counsel's fraud
or error; and (c) that he complied with the procedural requirements of Matter ofLozada, 19 l&N
Dec. 637 (BIA 1998). Ray v. Gonzalez, 439 F.3rd 582, 587 (9th Cir. 2006); Singh v. Holder, 658
F.3d 879, 884 (9th Cir. 2011).

When a motion is untimely and requires the exercise of judicial discretion, the Court may
grant a motion to reopen sua sponte. See Matter of J-J-, 21 I&N Dec. 976 (BIA 1997). The
Court's power to reopen sua sponte is limited to exceptional circumstances and is not meant to
cure filing defects or circumvent the regulations. Id. The Court must be persuaded by
sufficiently compelling reasoning that the extraordinary intervention of its sua sponte authority is
warranted. Matter ofG-D-, 22 l&N Dec. 1132 (BIA 1999).

III. RESPONDENT'S MOTION

The respondent moves this Court to reopen removal proceedings based on equitable
tolling, or in the alternative, sua sponte reopening due to a fundamental change of the law.
(Resp't Mot. at 2.) Specifically, the respondent alleges that the Ninth Circuit Court of Appeals
overruled prior law that rendered the respondent as having been convicted of an aggravated
felony under INA 10l (a)(43)(A), for his 2001 conviction of Unlawful Sexual Intercourse with a
Minor, in violation of California Penal Code ("CPC") 261.5(c). In 2008, the Ninth Circuit held
that a conviction under CPC 261.5(c), among others, does not categorically constitute sexual
abuse of a minor. Estrada-Espinoza v. Mukasey, 546 F.3d 1147, 1160 (9th Cir. 2008). As such,
the respondent alleges that the fundamental change of law renders him eligible for reopened
removal proceedings. (Resp't Mot. at 10.) Further, the respondent alleges that this Court has

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jurisdiction to consider sua sponte reopening of the respondent's removal proceedings and
requests that this Court consider the equities of the respondent. (Resp't Mot. at 12.)

III. FINDINGS AND ANALYSIS

A. Timeliness

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As preliminary matter, the respondent's motion to reopen is untimely as it was filed well
outside the ninety-day deadline following the final administrative order. 8 C.F.R.
1003.23(b)(l). Specifically, the respondent was ordered removed on March 3, 2005, and the
order became final, as described in 8 C.F.R. 1003.39, when the respondent waived appeal. (Hr.
(Mar. 3, 2005).) The instant motion to reopen was filed on September 29, 2016, eleven years
after the expiration of the ninety-day deadline. (Resp't Mot. to Reopen.)

Moreover, the respondent did not file the motion within a reasonable time following the
claimed change in his circumstances, to wit: the holding by the United States Court of Appeals
for the Ninth Circuit in 2008 in the matter of Estrada-Espinoza v. Mukasey, 546 F.3d 1147, 1160
(9th Cir. 2008). Accordingly, even considering the timeliness in the light most favorable to the
respondent, he still filed the motion approximately 8 years after the ninety-day deadline from the
date the decision by the Ninth Circuit in Estrada-Espinoza. On this record, the Court finds that
the respondent's motion is untimely as he failed to comply with the deadline provided in the
regulations.

Nevertheless, the Court considers whether one of the exceptions to the filing deadlines is
applicable in the respondent's case. The regulations provide the following exceptions to the
ninety-day filing deadline: when the basis of the motion to reopen is to seek asylum or
withholding of removal and the claim is based on changed country conditions, the removal order
was entered in absentia, or the motion to reopen is jointly filed. 8 C.F.R. 1003.23(b)(4). The
respondent does not seek asylum, withholding of removal, or protection pursuant to the
Convention Against Torture, he was present when the Immigration Judge ordered his removal,
and on October 18, 2016, the Department filed an opposition to the respondent's motion to
reopen. (OHS Opp.) As such, the instant motion was not jointly filed. (See Resp't Mot.)
Accordingly, the respondent's untimely motion is not cured by one of the regulatory exceptions.

B. Equitable Tolling

Despite the delay in filing, the respondent requests that this Court consider the motion in
the context of his circumstances and apply equitable tolling. See Iturribarria v. INS, 321 F.3d
889, 897 (9th Cir. 2003). The respondent has not demonstrated that there was deception, fraud,
or error sufficient to apply equitable tolling. Iturribarria v. INS, 321 F.3d 889, 897 (9th Cir.
2003). At the hearing held on November 23, 2005, the Court confirmed with the respondent that
he understood the nature and purpose of the proceedings and that he understood his legal rights
in the proceedings. After the Immigration Judge sustained the charge of removability and
ordered the respondent's removal, the respondent did not appeal. Indeed, the respondent's
family met with counsel in 2007 to submit an I-130 petition on his behalf. As such, the

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respondent found himself in immigration proceedings that allowed him the opportunity to review
his previous removal and find any alleged error.

Therefore, this Court is not persuaded that equitable tolling is appropriate in the instant
case as there was no "deception, fraud, or error" with the removal proceedings. Iturribarria v.
INS, 321 F.3d 889, 897 (9th Cir. 2003). Nevertheless, the Court also considers whether it would
be appropriate to exercise its ability to sua sponte reopen the respondent's proceedings.

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C. Sua Sponte

Finally, the Court considers whether to grant the respondent's request for sua sponte
reopening. When considering whether sua sponte reopening is appropriate, an Immigration
Judge must weigh the government's interest in bringing finality to immigration decisions against
the alien's interest in reopening proceedings. See Matter ofJ-J-, 21 I&N Dec. 976 (BIA 1997).

In the present case, the respondent failed to establish that he merits the extraordinary
remedy of sua sponte reopening. The respondent argues that his conviction no longer qualifies
as an aggravated felony and as such, his removal proceedings should be reopened, the removal
order should be vacated, and the removal proceedings should be terminated. (Resp't Mot. at
12.). Although a case decision subsequent to the respondent's order of removal held that a
conviction under CPC 261.S(c) is no longer an aggravated felony, and this could be a
fundamental change in law which may be considered an exceptional circumstance warranting
sua sponte reopening, the respondent did not act with due diligence after the decision in this
case.(See Resp't Mot. to Reopen.) The respondent waited 8 years after the decision in Estrada
Espinoza in 2008 to file his motion to reopen. (See Resp't Mot. to Reopen.) The respondent's
counsel argues that the delay in filing was beyond the respondent's control because he was not
aware of the change in law until present counsel reviewed his case. (Resp't Mot .at 7.)
However, there is no evidence demonstrating why the respondent waited 11 years since his
removal order and 8 years since the decision in Estrada-Espinoza, before having counsel review
his removal proceedings, especially in light of the fact that he retained counsel in 2007 to process
the I-130 petition submitted on his behalf. (Resp't Mot. at 3.) That the respondent waited more
than 8 years to acquire counsel to review his removal proceedings and file a motion to reopen
based on the change in the law is a clear lack of due diligence in pursuing his case, especially
absent any indication that this delay was due to inability to access counsel. The respondent thus
had ample opportunity to file a motion to reopen at a time more proximate to the change in law.
His failure to do so demonstrates a lack of due diligence which precludes the use of the
fundamental change in law as an exceptional circumstance warranting sua sponte reopening.

Accordingly, the Department's interest in the finality of immigration proceedings


outweighs the respondent's interest in the instant case. The Court will not exercise the
extraordinary remedy of sua sponte reopening !n this instance.

IV. CONCLUSION

On this record, the Court finds that the respondent's mtion to reopen is untimely, that
equitable tolling is not appropriate, and that the respondent has not demonstrated that he merits

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sua sponte reopening. Based on the aforementioned reasons, the Co.urt denies the respondent's
motion to reopen.

Accordingly, the following order shall be entered:

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ORDER: IT IS HEREBY ORDERED T ondent' s motion

,S_
DENIED

Linda I. Spencer-Walters
United States Immigration Judge

.-