Paty Belinda Lopez-Lopez; Renessmi Belinda Braul-Lopez v. MERRICK B. GARLAND, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
PATY BELINDA LOPEZ-LOPEZ;
RENESSMI BELINDA BRAUL-LOPEZ,
Petitioners,
v.
MERRICK B. GARLAND, Attorney
General,
Respondent.
No. 22-863
Agency Nos.
A208-537-555
A208-537-556
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted October 6, 2023
San Francisco, California
Before: W. FLETCHER, TALLMAN, and LEE, Circuit Judges.
After entering the United States, Petitioners Paty Belinda Lopez-Lopez and her
minor daughter sought asylum, withholding of removal, and protection under the
Convention Against Torture (“CAT”). An Immigration Judge (“IJ”) denied their
FILED
OCT 23 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.

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claims, and they filed a timely notice of appeal to the Board of Immigration Appeals
(“BIA”). The BIA rejected the filing for failure to include the required fee and gave
Lopez-Lopez 15 days to re-file the appeal.
According to a sworn declaration from Lopez-Lopez’s counsel submitted with
a motion for leave to file a late appeal, counsel did not receive notice from the BIA
that the appeal had been rejected. After counsel was made aware of the rejection,
Lopez-Lopez re-filed her appeal one day past the 15-day deadline, arguing that the
untimeliness should be excused by the lack of notice. The BIA dismissed her appeal
and denied her motion for reconsideration, writing that although Lopez-Lopez argued
“that [her] attorney never received notice that the [notice of appeal] had been
rejected,” she had “not offered any support for this contention.” Lopez-Lopez
petitioned for our review.
We grant the petition and remand for reconsideration. The BIA abuses its
discretion when it fails to consider relevant evidence in denying a motion for
reconsideration. Yeghiazaryan v. Gonzales, 439 F.3d 994, 1000 (9th Cir. 2006). The
agency erred in concluding that Lopez-Lopez had not offered any support for the
claim that her counsel did not receive notice that her notice of appeal was rejected.
Counsel’s sworn declaration that he had not received notice was in the record before
the BIA when it denied the motion for reconsideration, and the agency was required
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to consider that evidence. See Ontiveros-Lopez v. I.N.S., 213 F.3d 1121, 1125 (9th
Cir. 2000).
In addition, while this petition was pending before our court, the BIA
overturned its longstanding rule that the notice of appeal deadline is jurisdictional and
held that the deadline is subject to equitable tolling if a non-citizen establishes that she
“has been pursuing [her] rights diligently” and that “some extraordinary circumstance
prevented timely filing.” In re Morales-Morales, 28 I. & N. Dec. 714, 716–17 (BIA
2023). The BIA has not yet considered whether Lopez-Lopez’s 15-day deadline to
perfect her appeal should be equitably tolled by one day in light of the evidence that
her counsel did not receive notice that her appeal was rejected. We therefore remand
for the agency to consider equitable tolling in the first instance.
PETITION GRANTED and REMANDED.
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