FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT ELIZABETH LONA, AKA Lisa No. 17-70329 Elizabeth Lona, AKA Lisa Luna, AKA Chata Monkiker, Agency No. Petitioner, A090-045-915 v. OPINION WILLIAM P. BARR, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Argued and Submitted December 5, 2019 San Francisco, California Filed May 15, 2020 Before: Ronald M. Gould and Consuelo M. Callahan, Circuit Judges, and Stephen R. Bough, * District Judge. Opinion by Judge Callahan * The Honorable Stephen R. Bough, United States District Judge for the Western District of Missouri, sitting by designation. 2 LONA V. BARR SUMMARY ** Immigration Denying Elizabeth Lona’s petition for review of the Board of Immigration Appeals’ decision affirming the denial of her motion for reconsideration, the panel held that: (1) the BIA’s denial of equitable tolling was not unreasonable; (2) notwithstanding the BIA’s precedent regarding fundamental changes in the law, the BIA’s denial of sua sponte reconsideration was not premised on legal or constitutional error; and (3) Lona’s “settled course of adjudication” argument is barred by the general rule that the court lacks jurisdiction to review claims that the BIA should have exercised its sua sponte power in a given case. In 2013, Lona was removed to Mexico based on an aggravated felony conviction, which related to her California convictions for petty theft and/or burglary. Over two and a half years later, she moved for reconsideration in light of new case law, including Lopez-Valencia v. Lynch, 798 F.3d 863 (9th Cir. 2015), which held that convictions under California’s theft statute are categorically not aggravated felonies. First, she argued that Lopez-Valencia, and other decisions, fundamentally changed the law, invalidating the aggravated felony status of her convictions and her basis for removal. Second, she argued that she was entitled to equitable tolling of the thirty-day timeline for reconsideration. Third, she cited BIA precedent holding that a significant development in the law constitutes an ** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. LONA V. BARR 3 “exceptional circumstance” warranting the agency’s exercise of its sua sponte authority to reopen or reconsider cases. The IJ denied the motion, and the BIA affirmed. First, responding to Lona’s argument that the BIA erred by not addressing her equitable tolling claim, the panel concluded that the BIA implicitly rejected that claim. The panel inferred the BIA’s decision to mean that, regardless of whether the change in law effected by Lopez-Valencia was “fundamental,” Lona was not entitled to equitable tolling because (1) she failed to act with due diligence in discovering and raising the error asserted by Lopez-Valencia before the BIA and later, successfully before this court; and (2) she failed to do so despite the lack of impediments to obtaining vital information bearing on the existence of the claim. The panel agreed, explaining that Lona alleged no facts suggesting diligence, or that some extraordinary ...
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