NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 4 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT RICARDO GONZALEZ-RODRIGUEZ, No. 18-71683 19-71924 Petitioner, Agency No. A072-670-859 v. ROBERT M. WILKINSON, Acting MEMORANDUM* Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Argued and Submitted February 9, 2021 San Francisco, California Before: BERZON, CHRISTEN, and BADE, Circuit Judges. Ricardo Gonzalez-Rodriguez was placed in deportation proceedings in 1994 and deported in 2001. In 2018, he filed a motion to reopen on the basis of ineffective assistance of counsel and a motion to reconsider on the basis of Pereira v. Sessions, 138 S. Ct. 2105 (2018). He now petitions for review of the BIA’s denial of both motions. We have jurisdiction under 8 U.S.C. § 1252. For the * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. reasons that follow, we grant the petition with respect to the motion to reopen and deny the petition with respect to the motion to reconsider. 1. The BIA denied petitioner’s motion to reopen as procedurally barred for two alternative reasons. First, the BIA applied what is known as the “departure bar,” which states that “[a] motion to reopen . . . shall not be made by or on behalf of a person who is the subject of exclusion, deportation, or removal proceedings subsequent to his or her departure from the United States.” 8 C.F.R. § 1003.2(d). But “[t]he regulation is phrased in the present tense and so by its terms applies only to a person who departs the United States while he or she ‘is the subject of removal . . . proceedings.’ Because petitioner’s original removal proceedings were completed when he was removed . . . , he did not remain the subject of removal proceedings after that time.” Lin v. Gonzales, 473 F.3d 979, 982 (9th Cir. 2007) (quoting 8 C.F.R. § 1003.23(b)(1) (emphasis and first ellipses in original)). Second, the BIA applied the time and number bars, 8 C.F.R. § 1003.2(c)(2), and held that such bars should not be equitably tolled based on a reasonable person standard. According to the BIA, petitioner’s motion did not show that he “took reasonable actions that could establish due diligence between 2001,” when he was deported, “and 2017, when he consulted his present counsel.” But the proper question is not what a reasonable person would do but rather “if (and when) . . . a 2 reasonable person in petitioner’s position would suspect the specific fraud or error underlying [his] motion to reopen.” Bonilla v. Lynch, 840 F.3d 575, 582 (9th Cir. 2016) (emphasis added). Nothing in the BIA’s brief equitable tolling analysis takes account of the petitioner’s personal circumstances, which include: that petitioner was sixteen years old at the time his father applied for asylum for him and his family; that his attorney was dealing with his father, not with him; …
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