Brian Rosalio Guzman-Nunez v. MERRICK B. GARLAND, Attorney General

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
BRIAN ROSALIO GUZMAN-NUNEZ,
Petitioner,
v.
MERRICK B. GARLAND, Attorney
General,
Respondent.
No. 21-1118
Agency No.
A099-060-254
ORDER VACATING
MEMORANDUM DISPOSITION
AND GRANTING REHEARING
Before: BYBEE, BENNETT, and MENDOZA, Circuit Judges.
Dissent by Judge BENNETT.
This matter is before the court on petitioner Brian Rosalio Guzman-Nunez’s
petition for panel rehearing, filed October 25, 2023. We GRANT the petition for
rehearing, VACATE our memorandum disposition dated October 11, 2023
(Guzman-Nunez v. Garland, No. 21-1118, 2023 WL 6617941 (9th Cir. Oct. 11,
2023)), and REMAND to the Board of Immigration Appeals (“BIA”) for further
proceedings.
I.
Guzman’s petition for rehearing arises from this court’s denial of his petition
for review from a BIA decision denying his motion to reopen removal proceedings.
In 2008, Guzman pleaded nolo contendere to one count of violating California
Health and Safety Code § 11351.5. In 2018, an immigration judge denied
FILED
DEC 26 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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Guzman’s application for asylum and withholding of removal on account of
Guzman’s 2008 conviction. The BIA affirmed the immigration judge’s order and
issued a final order of removal on January 7, 2019.
Guzman timely petitioned for review in this court and we denied his petition.
Guzman-Nunez v. Barr, 822 F. App’x 563, 565 (9th Cir. 2020). Three days after
the mandate issued, on November 18, 2020, Guzman filed a motion in California
state court to vacate his 2008 conviction as invalid pursuant to California Penal
Code § 1473.7. In a minute order dated February 25, 2021, the California Superior
Court vacated Guzman’s 2008 conviction and set aside his plea, but did not state
its basis for vacating the conviction. On March 16, 2021, Guzman moved to
reopen his removal proceedings, arguing before the BIA that he was no longer
ineligible for asylum and withholding of removal because his 2008 conviction had
been vacated. The BIA determined that Guzman’s motion was untimely and not
subject to equitable tolling, and therefore denied the motion. The BIA also held
that Guzman failed to establish that his 2008 conviction was based on a procedural
or substantive defect in the underlying criminal proceeding because the Superior
Court’s minute order did not reflect the court’s rationale for vacating the
conviction.
On review in this court, we denied Guzman’s petition. We declined to reach
the issue of equitable tolling because, even if that doctrine had applied, we held:

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“Guzman failed to establish prima facie eligibility for relief because his motion to
reopen was unsupported by any evidence bearing on whether his 2008 conviction
was ‘vacated due to a substantive or procedural defect, and not for equitable or
rehabilitative reasons . . . .’” Guzman-Nunez, 2023 WL 6617941, at *1 (quoting
Ballinas-Lucero v. Garland, 44 F.4th 1169, 1178 (9th Cir. 2022)).
On October 25, 2023, Guzman filed the instant petition for rehearing, to
which he appended a nunc pro tunc-amended minute order (the “nunc pro tunc
order”) from the California Superior Court, dated October 25, 2023. The Superior
Court amended the February 2021 minute order because it “d[id] not reflect the
court’s order,” and added the following language nunc pro tunc: “The motion
pursuant to Penal Code Section 1473.7 is GRANTED. Defendant’s plea is set
aside this date.” Both parties then submitted supplemental briefing regarding the
impact of the nunc pro tunc order.
II.
Under California law, “the function of a nunc pro tunc order is merely to
correct the record of the judgment and not to alter the judgment actually
rendered.” Gonzalez v. Sherman, 873 F.3d 763, 772–73 (9th Cir. 2017) (quoting
In re Eckstrom’s Est., 354 P.2d 652, 655 (Cal. 1960)); id. at 773 (“[A] scrivener’s
error in a minute order or an abstract of judgment is a ‘recording error’ that must
be corrected to make those documents consistent with the oral pronouncement (the

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judgment) and may be ordered nunc pro tunc.”). Here, the California Superior
Court held on October 25, 2023, that its February 2021 vacatur order “does not
reflect the court’s order,” and amended the order to clarify that Guzman’s motion
to vacate was granted pursuant to California Penal Code § 1473.7. The nunc pro
tunc order therefore dates back to the date of the original order of vacatur.
The parties dispute whether this court may consider the nunc pro tunc order
at this juncture. “[O]ur review of BIA decisions is generally limited to the record
and [] it is unusual for this court to take judicial notice of events outside of the
administrative record.” Gafoor v. INS, 231 F.3d 645, 655 (9th Cir. 2000),
superseded by statute on other grounds 8 U.S.C. § 1158. And “we generally will
not consider ‘evidentiary material that either party could have presented to the BIA
but that the petitioner simply failed to introduce at the hearing[.]’” Marinelarena
v. Garland, 6 F.4th 975, 978 (9th Cir. 2021) (quoting Lising v. INS, 124 F.3d 996,
998 (9th Cir. 1997)).
We conclude that we may consider the nunc pro tunc order in deciding
whether to grant the petition for review given the unique posture of this case. “We
may take judicial notice of undisputed matters of public record, including
documents on file in federal or state courts,” Harris v. Cnty. of Orange, 682 F.3d
1126, 1132 (2012) (citation omitted); see Fed. R. Evid. 201, and we may choose to
“exercise [our] inherent authority to supplement the record in extraordinary cases”

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such as this, Lowry v. Barnhart, 392 F.3d 1019, 1024 (9th Cir. 2003). Under the
circumstances of this case, where the BIA considered the original order of vacatur,
the California Superior Court’s nunc pro tunc amendment to that order did nothing
more than correct a clerical error that was material to Guzman’s reopening claim,
and Guzman was not responsible for that error, we will consider the nunc pro tunc
order for the limited purpose of determining whether remand to the BIA is
warranted. We have considered state court orders in the past under similar
circumstances, and find it appropriate to do so here. See Aleman v. Holder, 472 F.
App’x 814, 815 (9th Cir. 2012) (granting Attorney General’s request to take
judicial notice of nunc pro tunc-amended order that was “not part of the
administrative record” and “remand[ing] to the BIA to consider, in the first
instance, that order’s effect on [p]etitioner’s arguments”); Fernandez-Ruiz v.
Gonzales, 468 F.3d 1159, 1170 (9th Cir. 2006) (considering Arizona court minute
order that was not in the administrative record where the order could not “have
been raised during the earlier BIA proceedings because the [] Arizona court
entered the minute entry over six months after the BIA rendered its decision” and
“conclud[ing] that the proper disposition is to remand the case to the BIA for it to
consider [the order] in the first instance”).
The nunc pro tunc order upends the BIA’s conclusion that “the record does
not reflect the state court’s rationale for granting [the vacatur].” The nunc pro tunc

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order reflects that in February 2021, the California Superior Court vacated
Guzman’s 2008 conviction pursuant to California Penal Code § 1473.7. Section
1473.7 provides for vacatur of a “conviction or sentence [that] is legally invalid
due to prejudicial error damaging the moving party’s ability to meaningfully
understand, defend against, or knowingly accept the actual or potential adverse
immigration consequences of a conviction or sentence.” Cal. Penal Code
§ 1473.7(a)(1).
We therefore remand so that the BIA may consider, in the first instance,
whether the vacatur of Guzman’s 2008 conviction pursuant to California Penal
Code § 1473.7(a)(1) demonstrates that Guzman faced “extraordinary
circumstances” for purposes of equitable tolling. Hernandez-Ortiz v. Garland, 32
F.4th 794, 801 (9th Cir. 2022) (explaining that equitable tolling applies “when
some extraordinary circumstance stood in the petitioner’s way and prevented
timely filing, and he acted with due diligence in pursuing his rights” (internal
quotation marks and brackets omitted)); see Covarrubias-Delgado v. Garland,
2023 WL 4928509, at *1 (9th Cir. Aug. 2, 2023) (reversing BIA’s holding with
respect to due diligence and remanding because “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” (citing INS v. Ventura, 537 U.S. 12, 16–18 (2002)).

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We narrow the period that the BIA may properly consider for the purposes
of equitable tolling on remand. Here, citing our decision in Lona v. Barr, 958 F.3d
1225, 1231–32 (9th Cir. 2020), the BIA rejected Guzman’s equitable tolling
argument for lack of due diligence because “[Guzman] has not explained why he
did not seek post-conviction relief in the eight years prior to him being detained in
2016.” But California Penal Code § 1473.7—the vehicle that allowed Guzman to
move for vacatur—was not enacted until 2017, and it makes little sense to fault
Guzman for a lack of diligence during the period before section 1473.7 relief
became available. The period prior to 2017 is therefore not appropriate for
consideration on remand because the relevant vacatur statute was not available
during that time. The BIA may, however, investigate whether Guzman-Nunez was
diligent in pursuing his rights after discovering that the original Superior Court
vacatur order was deficient for failing to list the basis on which vacatur was
granted.
Accordingly, we GRANT Guzman’s petition for rehearing; VACATE our
memorandum disposition in Guzman-Nunez v. Garland, No. 21-1118, 2023 WL
6617941 (9th Cir. Oct. 11, 2023); and REMAND the case to the BIA for
proceedings consistent with this order.

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Guzman-Nunez v. Garland, No. 21-1118
BENNETT, Circuit Judge, dissenting:
I respectfully dissent from the majority’s decision to grant the petition for
panel rehearing based on the out-of-record nunc pro tunc order. Because the order
was not presented to the Board of Immigration Appeals (BIA) but could have been,
our precedent bars us from considering it.
The Immigration and Nationality Act directs that “the court of appeals shall
decide the petition only on the administrative record on which the order of removal
is based.” 8 U.S.C. § 1252(b)(4)(A) (emphasis added). In Fisher v. INS, we held en
banc that the predecessor statute, which was materially similar, barred us from
considering out-of-record evidence that could have been but was not presented to
the BIA. 79 F.3d 955, 963–65 (9th Cir. 1996) (en banc). In Lising v. INS, we
confirmed Fisher’s holding:
Fisher relates to evidentiary material that either party could have
presented to the BIA but that the petitioner simply failed to introduce
at the hearing. The Fisher rule was intended to ensure that petitioners
present all outside documents, reports, or information during the course
of the administrative proceedings and not offer them for the first time
before this court.
124 F.3d 996, 998 (9th Cir. 1997).
The California Superior Court entered the original minute order vacating
Guzman’s 2008 conviction on February 25, 2021. The next month, Guzman,
represented by counsel, moved the BIA to reopen his removal proceedings. Guzman
FILED
DEC 26 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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2
could have sought clarification of the minute order at any time after it was issued on
February 25, 2021, and could have presented such clarification to the BIA before it
ruled on his motion to reopen on November 2, 2021. Instead, Guzman waited until
October 2023—nearly two years after the BIA denied his motion to reopen, and after
we affirmed the BIA’s denial—to obtain the nunc pro tunc order. Guzman does not
explain the delay. Nor does he claim that anything prevented him from obtaining
the nunc pro tunc order earlier or presenting it to the BIA in his motion to reopen
proceedings. Indeed, that Guzman’s counsel sought and obtained the nunc pro tunc
order supports that Guzman could have obtained it and presented it to the BIA.
As in Fisher, the out-of-record nunc pro tunc order could have been but was
not presented to the BIA. Thus, as in Fisher, we were required to refuse to consider
such evidence.1 I therefore respectfully dissent.
1 Contrary to the majority’s assertion, Fernandez-Ruiz v. Gonzales, 468 F.3d 1159
(9th Cir. 2006), did not involve similar circumstances. In that case, there was no
indication that the new evidence could have been obtained sooner and presented to
the BIA. See id. at 1170.

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