Leopoldo Covarrubias- Delgado v. MERRICK B. GARLAND, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
LEOPOLDO COVARRUBIAS-
DELGADO,
Petitioner,
v.
MERRICK B. GARLAND, Attorney
General,
Respondent.
No. 21-1341
Agency No.
A044-127-304
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted July 20, 2023**
Pasadena, California
Before: NGUYEN and FORREST, Circuit Judges, and BENNETT,*** District
Judge.
Leopoldo Covarrubias-Delgado (Covarrubias) petitions for review of a
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
*** The Honorable Richard D. Bennett, United States District Judge for
the District of Maryland, sitting by designation.
FILED
AUG 2 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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decision by the Board of Immigration Appeals (BIA) denying his motion to
reopen. We have appellate jurisdiction under 8 U.S.C. § 1252. We grant the
petition in part, dismiss the petition in part, and remand to the BIA.
1. Covarrubias first argues that the BIA should have reopened his case
pursuant to 8 C.F.R. § 1003.23(b)(4)(v), which excuses untimeliness where the
noncitizen can show due diligence and “[a] material change in fact or law
underlying a removability ground . . . that vitiates all grounds of removability
applicable to the [noncitizen].”1 The BIA did not err in refusing to rely on that
provision to reopen Covarrubias’s case. The final rule implementing the regulation
was preliminarily enjoined, and thus inapplicable, when the BIA ruled on
Covarrubias’s motion to reopen. See Rubalcaba v. Garland, 998 F.3d 1031, 1036
n.5 (9th Cir. 2021); see also Perez-Camacho v. Garland, 54 F.4th 597, 603 n.5 (9th
Cir. 2022).
2. Covarrubias next argues that the BIA erred in refusing to equitably
toll the statutory deadline for his motion to reopen. To qualify for equitable
tolling, Covarrubias must establish that he pursued his rights diligently and that
some extraordinary circumstance prevented timely filing. Hernandez-Ortiz v.
Garland, 32 F.4th 794, 801 (9th Cir. 2022).
1 Covarrubias cites to 8 C.F.R. § 1003.23(b)(4)(v), which relates to reopening
before the immigration court. The relevant regulation, 8 C.F.R. § 1003.2(c)(3)(v),
outlines an identical exception for motions to reopen filed before the BIA.

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The BIA erred in finding that Covarrubias failed to exercise due diligence in
pursuing relief. Covarrubias sought post-conviction relief in state court three days
after the BIA dismissed his initial appeal. After the government deported
Covarrubias, he diligently pursued reopening of his immigration case from abroad.
And he filed his motion to reopen within a reasonable time after the decision
vacating his conviction became final and he received the relevant records from the
state. Thus Covarrubias was reasonably diligent in pursuing relief given the
circumstances. See Avagyan v. Holder, 646 F.3d 672, 679 (9th Cir. 2011).
We agree with the BIA that the purported change in law under Rubalcaba v.
Garland, 998 F.3d 1031 (9th Cir. 2021), does not present an exceptional
circumstance that warrants reopening. But the BIA failed to consider whether
vacatur of a conviction underlying a removal order on constitutional grounds
qualifies as an exceptional circumstance for the purpose of equitable tolling.
Accordingly, we remand to the BIA to determine whether vacatur of Covarrubias’s
criminal conviction is an extraordinary circumstance that explains the delay in
filing his motion to reopen. See INS v. Ventura, 537 U.S. 12, 16–18 (2002).
3. Finally, Covarrubias argues that the BIA erred in denying his motion
to reopen sua sponte. Because the BIA’s decision denying sua sponte reopening
did not rely on an erroneous constitutional or legal premise, we lack jurisdiction to
review this claim. Bonilla v. Lynch, 840 F.3d 575, 588 (9th Cir. 2016); see also

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Menendez-Gonzalez v. Barr, 929 F.3d 1113, 1118–19 (9th Cir. 2019) (finding no
legal or constitutional error in denying sua sponte reopening when a petitioner’s
underlying conviction has been vacated).
PETITION GRANTED IN PART and DISMISSED IN PART;
REMANDED.

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