Blanca Elizabeth Vasquez- Mazariegos v. ERIC H. HOLDER, Jr., Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
BLANCA ELIZABETH VASQUEZ-
MAZARIEGOS,
Petitioner,
v.
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
No. 09-72343
Agency No. A073-225-132
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted December 2, 2013
Pasadena, California
Before: PREGERSON, BERZON, and CHRISTEN, Circuit Judges.
The Board of Immigration Appeals (BIA) refused to toll the deadline for
petitioner Blanca Vasquez-Mazeriegos to file her motion to reopen pursuant to
section 203 of the Nicaraguan Adjustment and Central American Relief Act of
1997 (NACARA), Pub. L. No. 105-100, 111 Stat. 2160 (1997), amended by Pub.
FILED
JAN 31 2014
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.

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L. No. 105-139, 111 Stat. 2644 (1997). See Albillo-De Leon v. Gonzales, 410 F.3d
1090 (9th Cir. 2005). We grant the petition insofar as it challenges this decision.
When she applied for employment authorization, Vasquez-Mazariegos
provided the INS with her name, address, and the same Alien-Identification
Number the agency had used to identify her in previous deportation proceedings.
The then-Immigration and Naturalization Service (INS) approved her for
employment even though, as the government recognizes, Vasquez-Mazariegos’s
outstanding deportation order rendered her ineligible for employment
authorization. So the INS’s repeated approvals of Vasquez-Mazariegos’s
applications for employment authorization were in error. Those approvals
necessarily conveyed the message that there was no need for her to file a
NACARA motion to reopen a previous deportation order.
Vasquez-Mazariegos joined her husband’s pending asylum application well
in advance of both the NACARA September 11, 1998, deadline for filing a motion
to reopen prior deportation orders, 8 C.F.R. § 1003.43(e)(1), and the November 18,
1999, deadline for filing a NACARA application for suspension of deportation or
special rule cancellation. See 8 C.F.R. § 1003.43(e)(2). Had the government
denied her employment authorization the first time she requested it, as it should
have, Vasquez-Mazariegos could have filed a timely motion to reopen her
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deportation proceedings under NACARA and a timely application for NACARA
relief. See 8 C.F.R. § 1003.43(e)(1). And NACARA required reopening of
deportation orders for applicants prima facie eligible for NACARA relief. See
NACARA § 203(c) (“Notwithstanding any limitation imposed by law on motions
to reopen removal or deportation proceedings (except limitations premised on an
alien’s conviction of an aggravated felony . . .), any alien who has become eligible
for cancellation of removal or suspension of deportation as a result of [NACARA]
may file one motion to reopen removal or deportation proceedings to apply for
cancellation of removal or suspension of deportation.”); Albillo-De Leon, 410 F.3d
at 1093 (“A motion to reopen will not be granted unless an alien can demonstrate
prima facie eligibility for relief under NACARA.”).
Vasquez-Mazariegos’s failure to take the necessary step of moving to reopen
proceedings for NACARA relief until many years after these deadlines had passed
is thus directly traceable to her reliance on the government’s mistaken affirmative
approvals of her application for employment authorization, and the message
conveyed by those approvals—that she did not need to file a motion to reopen
deportation proceedings. Because Vasquez-Mazariegos provided the government
with the information it needed to find her prior deportation order, it was reasonable
for her to rely on that message. Her failure to recognize the need to file a motion
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to reopen in time to meet the September 11, 1998, filing deadline is therefore
“excusable.” See Socop v. Gonzalez v. INS, 272 F.3d 1176, 1184 (9th Cir. 2001)
(en banc). Accordingly, she is entitled to equitable tolling.
The government suggests that equitable tolling does not apply because
Vasquez-Mazariegos would have known of the deportation order if she had
provided a valid address when the Order to Show Cause was issued. But this
argument ignores the message conveyed by the government’s repeated approval of
her work-authorization applications. As explained, by approving Vasquez-
Mazariegos for employment, the government sent her the erroneous message that
she did not need to file a motion to reopen deportation proceedings, because there
was no barrier to her receiving NACARA relief as a derivative of her husband’s
application.
The NACARA motion-to-reopen filing deadline must, therefore, be tolled
until the date Vasquez-Mazariegos “definitively learn[ed]” of the existence of her
deportation order. Once the government alerted Vasquez-Mazariegos that there
was a problem with her derivative spouse application, she promptly retained an
attorney and filed a Freedom of Information Act (FOIA) request for information
about her case. She “definitively learn[ed]” of her outstanding deportation order
when she “received a copy of [her] court file pursuant to [the] FOIA request.”
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Albillo-De Leon, 410 F.3d at 1100. Albillo-De Leon holds that she had 238 days to
file her motion to reopen after “obtain[ing] [the] vital information bearing on the
existence of [her] claim.” Id. (citing NACARA § 203(c); 8 C.F.R.
§ 1003.43(e)(1)). Vasquez-Mazariegos filed the instant motion to reopen within
238 days of obtaining the vital information contained in her court file. Therefore,
her motion to reopen for NACARA relief was timely. Id.
Finally, although it is possible to read the Immigration Judge’s (IJ) decision
as, in the alternative, denying the motion to reopen on discretionary grounds, it is
also possible to read that portion of the decision as the IJ merely declining to
exercise its discretion to reopen Vasquez-Mazariegos’s case sua sponte. The latter
reading is the most plausible, given that NACARA directs reopening upon a
showing of prima facie eligibility for NACARA relief. See Albillo-De Leon, 410
F.3d at 1093; Motion to Reopen: Suspension of Deportation and Cancellation of
Removal, 64 Fed. Reg. 13663, 13665 (March 22, 1999) (“[T]he dependent’s case
shall be reopened if the immigration judge finds that the dependent is prima facie
eligible for suspension or cancellation relief and if the dependent submits proof
that the principal alien has applied and is prima facie eligible for NACARA
relief.”). Moreover, the BIA did not explicitly adopt the IJ’s alternative ground for
denying Vasquez-Mazariegos’s motion, and as the BIA stated “with sufficient
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particularity its reasons for denying the petition, we review [the BIA’s] decision
and ‘[do] not rely on the IJ’s opinion in deciding the merits of [Vasquez-
Mazariegos’s case].’” Lahmidi v. INS, 149 F.3d 1011, 1012–13 (9th Cir. 1998)
(quoting Castillo v. INS, 951 F.2d 1117, 1120–21 (9th Cir. 1991)); see also
Rodriguez v. Holder, 683 F.3d 1164, 1169 (9th Cir. 2012).
Because it held her application for NACARA relief untimely, the BIA never
addressed whether Vasquez-Mazariegos was prima facie eligible for NACARA
relief as a derivative spouse, so that her NACARA motion to reopen would have
been granted if timely filed. Our decision that equitable tolling applies thus
requires that we remand the case for further proceedings.
The petition for review is GRANTED and the case is REMANDED for
consideration of the merits of Vasquez-Mazariegos’s motion to reopen.
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