Phun Yem v. MERRICK B. GARLAND, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
PHUN YEM,
Petitioner,
v.
MERRICK B. GARLAND, Attorney
General,
Respondent.
No. 22-364
Agency No.
A027-341-758
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted October 4, 2023
San Francisco, California
Before: W. FLETCHER, TALLMAN, and LEE, Circuit Judges.
Phun Yem, a native and citizen of Cambodia, petitions for review of the Board
of Immigration Appeals’ (“BIA”) decision dismissing his appeal of the Immigration
Judge’s (“IJ”) denial of his motion to reopen and terminate his removal proceedings
as time barred and not subject to equitable tolling. Yem’s order of removal became
final on June 10, 2005. The statutory filing deadline for his motion to reopen was
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
FILED
OCT 26 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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ninety days later on September 8, 2005. 8 U.S.C. § 1229a(c)(7)(C)(i). Our decision
in Estrada-Espinoza v. Mukasey invalidated the original basis for Yem’s removal on
October 20, 2008. 546 F.3d 1147 (9th Cir. 2008). Yem filed the motion to reopen
that gave rise to this case on December 10, 2019, eleven years later. We have
jurisdiction pursuant to 8 U.S.C. § 1252, and we deny the petition.
A more detailed explanation by the BIA would have been desirable; however,
the facts of this case are sufficiently clear such that we may discern from the existing
record the basis of the BIA’s denial of relief. In Lona v. Barr, we observed that
equitable tolling cases “typically arise in conjunction with claims of ineffective
assistance of counsel,” but also that the BIA may choose to toll statutory filing
deadlines “in cases where the petitioner seeks excusal from untimeliness based on a
change in the law that invalidates the original basis for removal.” 958 F.3d 1225,
1230 (9th Cir. 2020). Still, petitioners bear the burden of proof to demonstrate that
they were prevented from filing a timely motion to reopen “because of deception,
fraud, or error,” and that they acted with “due diligence in discovering the deception,
fraud, or error” for equitable tolling to apply. Iturribarria v. I.N.S., 321 F.3d 889,
897 (9th Cir. 2003). Thus, a threshold question in any equitable tolling analysis is
whether a petitioner diligently pursued his rights. See Lona, 958 F.3d at 1232
(framing the inquiry as whether petitioner demonstrated “a diligent pursuit of her
rights in the intervening years between her removal and [the change in law]”);

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Goulart v. Garland, 18 F.4th 653, 655 (9th Cir. 2021) (same).
Yem does not offer sufficient evidence that he diligently pursued his rights in
the fourteen years between when his removal order became final in 2005 and when
he filed his motion to reopen in 2019. Yem makes two arguments to support a
finding of diligence: (1) that he had initial consultations with two immigration
attorneys in 2007, both of whom told him that there was nothing that could be done
about his then-valid removal order, and (2) that he checked in with ICE every three
to six months as a condition of his release from immigration detention. First, Yem
did not retain either attorney from 2007, he did not provide their names to the BIA,
and he never again checked in with them, or any other attorneys, for the next twelve
years. See Bonilla v. Lynch, 840 F.3d 575, 583 (9th Cir. 2016) (finding a petitioner
did not act with due diligence when he waited six years to pursue further legal advice
after an initial consultation with a pro bono attorney at an immigration workshop).
Second, Yem offered no evidence that he asked ICE about the status of his case at
any of his check-ins, that ICE was under any obligation to inform him about changes
in the law underlying his removal order, or that these meetings were anything other
than mandatory check-ins related to his outstanding removal order. This evidence
falls well short of the reasonable diligence required to warrant equitable tolling.
The BIA concluded that Yem waited too long to file his motion to reopen,
even considering his personal circumstances. We have considered the fact that the

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agency did not discuss the evidence that Yem submitted to support a finding of due
diligence. While we would have preferred a more detailed explanation to
demonstrate the basis for the agency’s decision, we see no need to remand on this
record when “it is obvious that the BIA . . . would explicitly deny equitable tolling
for the reasons we set forth.” Lona, 958 F.3d at 1231 n.7.
PETITION DENIED.

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