HOANG v. WILKINSON (2021)

United States Court of Appeals, Ninth Circuit.2021-02-08No. No. 19-72953

Summary · law.co

Holding. The petition was denied. The court affirmed the BIA's denial of the motion to reopen because the petitioners failed to act with diligence and were ineligible for equitable tolling, and the immigration court retained jurisdiction over the proceedings.

Two Vietnamese citizens petitioned for review of the Board of Immigration Appeals' decision to deny their motion to reopen immigration proceedings. The petitioners argued the immigration court lacked jurisdiction and that they deserved equitable tolling of filing deadlines. The court rejected both arguments, finding that the immigration court properly maintained jurisdiction over the case and that the petitioners were not diligent in pursuing legal counsel, having waited more than five years before seeking assistance.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Whether the immigration court retained jurisdiction despite defects in the notice to appear
Whether the petitioners were entitled to equitable tolling of the motion-to-reopen deadline
Whether the petitioners demonstrated sufficient diligence in pursuing legal representation

Procedural posture

Petitioners sought review of the BIA's denial of their motion to reopen immigration proceedings in the federal appellate court.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

MEMORANDUM ***

Petitioners Hung Ngoc Hoang and Kim Hue Thi Au, husband and wife, are natives and citizens of Vietnam. They petition for review of the Board of Immigration Appeals’ (BIA) denial of their motion to reopen their immigration proceedings. We have jurisdiction under 8 U.S.C. § 1252(a)(1). We review the BIAs denial of the motion to reopen for an abuse of discretion, and we deny the petition. See Aguilar Fermin v. Barr, 958 F.3d 887, 892 (9th Cir. 2020),

The immigration court was not deprived of jurisdiction over petitioners immigration proceedings. See Aguilar Fermin, 958 F.3d at 894-95 (holding that “the lack of time, date, and place” in a notice to appear “did not deprive the immigration court of jurisdiction” when that information was subsequently provided and permitted an appearance).

The BIA did not abuse its discretion when denying Petitioners’ motion as untimely. Petitioners were not entitled to equitable tolling because they failed to act with diligence, not seeking legal advice during a five and one-half year interval. See Bonilla v. Lynch, 840 F.3d 575, 583 (9th Cir. 2016), as amended (upholding a finding of lack of diligence due to “a six year gap ․ in [the petitioners] pursuit of legal advice”).

PETITION DENIED.

FOOTNOTES

. Because the BIAs denial of the motion to reopen precluded consideration of the merits of Petitioners’ claims, they are not properly before us on appeal. See Toufighi v. Mukasey, 538 F.3d 988, 995 (9th Cir. 2008) (explaining that “our jurisdiction is limited to review of the [BIAs order] denying the motion to reopen”).