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U.S.

Department of Justice

Executive Office for Immigration Review

Board ofImmigration Appeals


Office ofthe Clerk

5107 Leesburg Pike, Suite 2000


Falls Church, Virgm1a 22041

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Ghazarian, Adrine OHS/ICE Office of Chief Counsel - LOS
Law Offices of Gita B. Kapur and Associates 606 S. Olive Street, 8th Floor
617 S. Olive Street, Suite 311 Los Angeles, CA 90014
Los Angeles, CA 90014

Name: TRUJILLO, JOSE JESUS A 092-937-227

Date of this notice: 11/29/2017

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

Sincerely,

Donna Carr
Chief Clerk

Enclosure

Panel Members:
O'Connor, Blair
Wendtland, Linda S.
Pauley, Roger

Userteam: Docket

For more unpublished BIA decisions, visit


www.irac.net/unpublished/index

Cite as: Jose Jesus Trujillo, A092 937 227 (BIA Nov. 29, 2017)
u.s� :pepartment of Justice Decision of the Board of Immigration Appeals
Executive Office for Immigration Review
.

Falls Church, Virginia 22041

File: A092 937 227 - Los Angeles, CA Date: NOV 2 9 2017

In re: Jose Jesus TRUllLLO a.k.a. Jesus De Jesus Trujillo a.k.a. Jose De Jesus Trujillo Mares

Immigrant & Refugee Appellate Center, LLC | www.irac.net


IN DEPORTATION PROCEEDINGS

APPEAL

ON BEHALF OF RESPONDENT: Adrine Ghazarian, Esquire

APPLICATION: Reconsideration

The respondent, a native and citizen of Mexico, appeals from an Immigration Judge's
February 23, 2017, decision denying his motion to reconsider. The appeal will be sustained and
the proceedings will be terminated.

The respondent was ordered deported from the United States by an Immigration Judge on
November 7, 1997, based on a charge of deportability pursuant to former section 241(a)(2)(C) of
the Immigration and Nationality Act, 8 U.S.C.§ 125l(a)(2)(C)(1994), as an alien convicted under
any law of carrying a firearm. 1 The respondent appealed that decision, and on January 25, 1999,
the Board remanded the record to the Immigration Judge to further explain his reasoning and
conclusion. On March 22, 1999, the Immigration Judge issued a written decision ordering the
respondent deported to Mexico. The respondent did not appeal from that final administrative order
of deportation. The respondent attempted to reenter the United States in November 2000, and was
ordered removed pursuant to an expedited order of removal. On November 28, 2000, the
respondent was ordered removed after admitting the factual allegations related to charges pursuant
to sections 212(a)(6)(C)(ii), 212(a)(7)(A)(i)(I), and 212(a)(9)(A)(i) of the Act, 8 U.S.C. §§
1182(a)(6)(C)(ii), (a)(7)(A)(i)(I), (a)(9)(A)(i).

On December 19, 2016, the respondent filed a motion to reconsider with the Immigration
Judge. See 8 C.F.R. § 1003.23(b)(l) and (2). In the motion, the respondent claimed that his
1999 deportation order should be reconsidered in light of intervening case law in the Ninth Circuit
holding that convictions based on the definition of a firearm in former Cal. Penal Code§ 12001(b)
are not deportable offenses under section 24l(a)(2)(C) of the Act (Respondent's Motion at 5-9).

In a decision dated February 23, 2017, the Immigration Judge denied the motion. The
Immigration Judge acknowledged that, based on intervening case law in Medina-Lara v. Holder,
771 F.3d 1106 (2014), the respondent's 1991 firearms conviction was no longer a predicate for
deportation under section 241(a)(2)(C) of the Act (U at 2-3). However, notwithstanding the
change in statutory construction, the Immigration Judge determined that the respondent's motion
was untimely and that he did not demonstrate sufficient due diligence to equitably toll the filing

1 In 1991 the respondent was convicted of a violation of Cal. Penal Code 12025(b), carrying a

concealed weapon (U at 3). The applicable definition of "firearm" as used in former Cal. Penal
Code§ 12025(b) appeared at former Cal. Penal Code§ 12001(b) (U at 3).

Cite as: Jose Jesus Trujillo, A092 937 227 (BIA Nov. 29, 2017)
A09 2 937 227
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deadline (U at 3-4). The Immigration Judge further concluded that, even if the respondent had
acted with due diligence for equitable tolling to apply, he still has two additional final orders of
removal in 2000 that are unaffected by any invalidation of his 1999 deportation order (IJ at 4).
Finally, the Immigration Judge declined to exercise sua sponte authority to reopen the respondent's
case as a matter of discretion (IJ at 4).

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Initially, we agree with the Immigration Judge that the respondent's motion is untimely.
However, we find that the Immigration Judge should have exercised his sua sponte authority to
reopen the respondent's proceedings based upon a fundamental change in law that affects the
validity of the respondent's 1999 order of deportation. See Matter of G-D-, 22 l&N Dec. 1132
(BIA 1999) (holding that in order for a change in the law to qualify as an exceptional situation
which merits the exercise of discretion to reopen or reconsider a case sua sponte, the change must
be fundamental in nature and not merely an incremental development in the state of the law).
Specifically, in light of the intervening case law in Medina-Lara v. Holder, the sole charge of
deportability upon which the respondent's 1999 order was based is no longer valid. Accordingly,
we will exercise our sua sponte authority, reopen the 1997 deportation proceedings, and tenninate
those proceedings. We note that our decision in these proceedings does not, by itself, affect the
validity of the respondent's other orders of removal from 2000.2

Accordingly, the following order will be entered.

ORDER: The appeal is sustained and the proceedings are terminated.

FOR THE BOARD

Board Member Roger A. Pauley respectfully dissents and would affirm the Immigration
Judge's decision to deny sua sponte reopening in discretion for the reasons there stated (IJ at 4).

2 In reopening and tenninating the instant proceedings, we in no way intend to diminish the
seriousness of the respondent's charge of falsely claiming U.S. citizenship that resulted in the
November 28, 2000 removal order. While we express no view on the merit of any future motions
to reopen that the respondent may file, we note that this charge may constitute a significant adverse
factor in the discretionary analysis. In any event, given the existence of the two additional removal
orders from 2000, we see no reason to deny reopening of an old deportation order based on a sole
charge of deportability that has been rendered invalid by intervening precedent.

2
Cite as: Jose Jesus Trujillo, A092 937 227 (BIA Nov. 29, 2017)
.

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UNITED STATES DEPARTMENT OF JUSTICE


EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRATION COURT
606 SOUTH OLIVE ST.
LOS ANGELES, CA 90014

Immigrant & Refugee Appellate Center, LLC | www.irac.net


Law Offices of Gita B. Kapur and Associates
Ghazarian, Adrine
617 S. Olive Street, Suite 311
Los Angeles, CA 90014

IN THE MATTER OF FILE A 092-937-227 DATE: Feb 28, 2017


TRUJILLO, JOSE JESUS

UNABLE TO FORWARD - NO ADDRESS PROVIDED

7 ATTACHED IS A COPY OF THE DECISION OF THE IMMIGRATION JUDGE. THI.S ECISION


IS FINAL UNLESS AN APPEAL IS FILED WITH THE BOARD OF IMMIGRATION·A?PEALS

WITHIN 30 CALENDAR DAYS OF THE DATE OF THE MAILING OF THIS WRITTE � DECISION.
SEE THE ENCLOSED FORMS AND INSTRUCTIONS FOR PROPERLY PREPARING YOUR ···APPEAL.
I•
YOUR NOTICE OF APPEAL, ATTACHED DOCUMENTS,' AND FEE OR FEE WAIVER REQUEST
MUST BE MAILED TO: BOARD OF IMMIGRA�IO APPEALS l}
OFFICE OF THE CLERK
5107 Leesburg Pike·, Suite 2000
FALLS CHURCH, VA . ti2 2041

ATTACHED rs 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, a. U.S.C ·
i
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
606 SOUTH OLIVE ST.
LOS ANGELES, CA 90014

OTHER:

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UNITED STATES DEPARTMENT OF JUSTICE


EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRATION COURT
LOS ANGELES, CALIFORNIA

File No.: A092 937227

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In the Matter of:

TRUJILLO, IN REMOVAL PROCEEDINGS


Jose Jesus,

Respondent

CHARGE: Section 241(a)(2)(C) of the Immigration and Nationality Act (INA)-­


convicted under any law ofcarrying any weapon which is a firearm in
violation of any law

APPLICATION: Respondent's Motion to Reconsider

ON BEHALF OF RESPONDENT: ON BEHALF OF THE DEPARTMENT:


Gita B. Kapur Assistant Chief Counsel
Law Offices of Gita B. Kapur & Associates U.S. Department of Homeland Security
14144 Ventura Blvd., Suite 270 606 South Olive Street, Eighth Floor
Sherman Oaks, CA 91423 Los Angeles, California 90014

DECISION AND ORDERS OF THE IMMIGRATION JUDGE

I. Procedural History

Jose Jesus Trujillo (Respondent) is a native and citizen of Mexico. On January 14, 1997,
the Immigration and Naturalization Service (INS) personally served the Respondent with an
Order to Show Cause (OSC). 1 Exh. 1. In the OSC, the INS alleged that Respondent is not a
citizen or national of the United States, is a native and citizen of Mexico, entered the United
States at or near San Ysidro, California on or about 1979, adjusted status to that of a legal
permanent resident on November 4, 1989, and was convicted in the Municipal Court, County of
Los Angeles of the offense of carrying a concealed firearm on the person, in violation of
California Penal Code§ 12025(b) on September 3, 1991. Id. INS charged Respondent as
d eportable pursuant to former INA§ 241(a)(2)(C) as having been convicted under any law of

1 The INS ceased to exist in 2003, and most of its functions were transferred to the U.S. Department of Homeland
Security and its subagencies, including Immigration and Customs Enforcement. See Homeland Security Act of
2002, Pub. L. No. 107-296, §§ 441, 471, 116 Stat. 2135, 2192, 2205 (codified at 6 U.S.C. §§ 251, 291); Morales­
lzquierdo v. Gonzales, 486 F.3d 484, 489 n.7 (9th Cir. 2007) (en bane).

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carrying a firearm. Id. Jurisdiction vested and deportation proceedings commenced when the
INS filed the OSC with the Court on March 16, 1995. 8 C.F.R.§ 3.14(a) (1995).

On May 28, 1997, Respondent appeared and, through counsel, admitted factual
allegations one through four, denied allegation five, and contested the charge of deportability.
On November 7, 1997, INS served conviction documents and the Court sustained the charge of

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deportability. The Immigration Judge concluded that no relief was available to Respondent and
ordered him deported. On December 8, 1997, Respondent appealed the decision. The Board of
Immigration Appeals sustained the appeal and remanded for the Judge to further explain his
reasoning and conclusion. On March22, 1999, the Immigration Judge issued a written decision
concluding that Respondent was deportable as charged and no relief was available. Respondent
subsequently returned to Mexico on an unknown date.

On or about November 5, 2000, Respondent attempted to reenter the United States. He


was then ordered removed pursuant to an expedited removal order under INA§ 235(b)(l). See
Respondent's Motion to Reconsider, Tab G. On November 15, 2000, Respondent tried to reenter
the United States again and was detained at the U.S.-Mexico border. On November 16, 2000,
the U.S. Department of Homeland Security (DHS) served Respondent with a Notice to Appear
(NTA) and charged Respondent as removable pursuant to INA§§ 212(a)(6)(C)(ii),
212(a)(7)(A)(i)(I), and 212(a)(9)(A)(i). Id. On November 28, 2000, Respondent admitted all
factual allegations. Respondent admitted that he falsely represented himself to be a United
States citizen for the purpose of gaining admission into the United States, and that he was
previously removed pursuant to an expedited removal order and was seeking admission within
five years of that removal. Respondent was subsequently ordered removed. Id. at Tab H.

On December 19, 2016, Respondent filed the instant Motion to Reconsider the Court's
November 7, 1997 decision.

For the reasons stated below, the Court will DENY Respondent's motion.

II. LAW AND ANALYSIS

A motion to reconsider requests that the Court reexamine its original decision in light of
additional legal arguments, an argum�nt or aspect of the case that was overlooked, or a change in
the law. See Matter of Ramos, 23 I&N Dec. 336, 338 (BIA 2002) (quoting Matter of Cerna, 20
I&N Dec. 399, 402 n.2 (BIA 1991)). Such a motion must be filed within thirty days of the date
of a final administrative order of removal, must demonstrate errors of fact or law in the Court's
prior decision, and must be supported by precedential authority. See INA § 240(c)(6)(B), (C);
8 C.F.R.§ 1003.23(b)(l), (2). In deciding a motion to reconsider, the Court reviews the same
factual record used in making its prior decision. See Doissaint v. Mukasey, 538 F.3d 1167, 1170
(9th Cir. 2008); Iturribarria v. INS, 321 F.3d 889, 895 (9th Cir. 2003).

A. Error in Law

Respondent requests reconsideration of the Court's 1999 decision based on recent


statutory interpretations finding that the California statute defining "firearm" is broader than the

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definition in the federal statute. The Ninth Circuit found that convictions based on the definition
of a fireann in former§ 12001(b) are not removable offenses under INA§ 241(a)(2)(C).
Medina-Lara v. Holder, 771 F.3d 1106 (2014); see also Moncrieffe v. Holder, S. Ct. 1678
(2013). The definition of a fireann in former§ 1200l(b) is overbroad and indivisible, and as
such, a conviction based on that definition is categorically not a fireanns offense. Medina-Lara,
771 F.3d at 1117. Decisions of statutory interpretation are fully retroactive because they explain

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what the law has always meant. U.S. v. Aguilera-Rios, 769 F.3d 626, 632 (2014).

Because the holdings in Moncrieffe and Medina-Lara involve questions of statutory


construction, their holdings are retroactively applicable to the time of Respondent's deportation
hearing. Aguilera-Rios, 769 F.3d
. at 632. In 1991, Respondent was convicted of a violation
. of
Cal. Penal Code§ 12025(b) carrying a concealed weapon. The applicable definitio.n of"fireann"
as used in former§ 12025(b) appeared at former§ 12001(b).. The definition of a fireann in
former§ 12001(b) lacked an antique fireanns exception and was indivisible. Medina-Lara, 771
F.3d at 1117.. Accordingly, Respondent's conviction under§ 12025(b) was not a predicate for
removal under INA§ 24 l(a)(2)(C) and his 1999 order of deportation was invalid.

B. Timeliness

Notwithstanding the change in statutory construction, Respondent's motion will be


denied as untimely. A motion to reconsider must be filed within thirty days of the date of a final
administrative order of removal. INA§ 240(c)(6)(B). Untimely motions to reconsider are
subject to equitable tolling of the filing deadline during periods when a respondent is prevented
from filing because of deception, fraud, or error, as long as the respondent acts with due
diligence in discovering the deception, fraud, or error. See lturribaria v. INS, 321 F.3d 889, 899
(9th Cir. 2003). For equitable tolling to apply, the respondent must have been unable to obtain
vital information bearing on the existence of the claim, despite all due diligence. Valeriano v.

Gonzales, 474 F.3d 669, 673 (9th Cir. 2007).

The instant motion is untimely filed and Respondent has not demonstrated sufficient due
diligence for equitable tolling. The Court acknowledges that the filing deadline is tolled until the
Ninth Circuit decided Medina-Lara v. Holder, 771 F.3d 1106 (9th Cir. 2014). However,
Respondent has not demonstrated due diligence for the period of time after Medina-Lara was
decided on October 10, 2014. Ignorance of new case law that could have been discovered with
reasonable due diligence is insufficient to warrant equitable tolling. See Mendez-Alcaraz v.
Gonzales, 464 F. 3d 842, 845 (9th Cir. 2006).

Respondent claims he retained attorney Leticia Moreno in 2013. Respondent's


Declaration. Moreno filed a request to review Respondent's file on September 4, 2013 and
reviewed the record on September 24, 2013. Respondent claims that Moreno told him there was
"nothing to be done" on his case. Id. At the time, Moreno's assessment of Respondent's case
was correct since Medina-Lara had not yet been decided. Moreno filed a request to review
Respondent's file again on August 3, 2015, but it is unclear whether an appointment was ever
made for her to review the record. Respondent does not claim to have sought further legal
advice after his meeting with Moreno in 2013 until he met with current counsel in 2016. See
Respondent's Declaration. Respondent has not shown that despite his due diligence, he was
unable to obtain information regarding new case law that affected his prior order of deportation.

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Respondent has not explained why he waited two years before taking further steps to pursue
relief with Moreno, or why current counsel waited six months to file a request to review
Respondent's record if"pertinent documentation," including Respondent's OSC, was missing
from his file. SeeDeclaration of Adrine Ghazarian. The Court finds that Respondent has not
exercised reasonable due diligence to toll the period of time after the Ninth Circuit issued its
decision in Medina-Lara. Therefore, Respondent's motion is untimely.

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C. Subsequent'Orders ofRemoval

Even if Respondent acted with sufficient due diligence for equitable tolling to apply,
Respondent still has two additional final orders of removal. Respondent was subject to an
expedited removal order on November 5, 2000. See Respondent's Motion to Reconsider, Tab G.
Most significantly, Respondent again attempted to reenter the United States only ten days later
and was detained at the U.S.-Mexico border. Id. He admitted to falsely claiming citizenship for
the purpose of gaining admission. Id. On November 28, 2000, Respondent was ordered
removed based on his decision to commit fraud in order to gain entry into the United States and
waived appeal. Id. at Tab H. Respondent's decision to commit fraud in order to gain admission
to the United States remains an independent basis for removal that is unaffected by the
invalidation of his 1999 deportation order.

D. Sua Sponte Reopening

Lastly, the Court declines to exercise its sua sponte authority to reopen Respondent's
case as a matter of discretion. An immigration judge may, upon her own motion at any time, or
upon motion ofDHS or the respondent, reopen any case in which she has made a decision. 8
C.F.R. § 1003.23(b)( l ). The decision to grant or deny a motion to reopen is within the discretion
of the immigration judge. Id. The Court notes that since Respondent's initial deportation, he has
attempted at least three unlawful reentries into the United States and is currently unlawfully
present in the United States. Rather than pursue legal means to regain legal status in the United
States, Respondent disregarded immigration laws. He ignored the Court's three final orders of
removal and attempted to illegally reenter the United States. Most troublesome is Respondent's
false claim to United States citizenship in order to gain admission only ten days after an
expedited order of removal. For the 17 years since his first final order of removal, Respondent
has shown an apparent and egregious disregard for the law. Yet, after waiting 14 years before
pursuing any legal recourse, he now seeks to benefit from the change in statutory interpretation.
As a matter of discretion, the Court declines to reopen Respondent's case to allow him to receive
an immigration benefit simply because the law happened to change, given his history of
disregard for immigration law. While Respondent has significant equities, including extensive
family in the United States, these equities are overcome by the negative factors in his case.

Accordingly, the Court enters the following order:

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ORDER

IT IS HEREBY ORDERED that Respondent's motion to reconsider be DENIED.

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