The Ninth Circuit affirmed the Board of Immigration Appeals’ (BIA) refusal to exercise its sua sponte authority to reopen or reconsider the removal order of a deported lawful permanent resident after the Ninth Circuit determined that her conviction was not a deportable offense. The court declined to adopt the “settled course of adjudication” doctrine (which would have required the court to recognize the BIA has a settled policy of reopening cases under similar circumstances), finding that the doctrine is barred by the general rule that a federal court has no jurisdiction to review the BIA’s refusal to exercise its sua sponte authority. “Because the jurisdictional bar still applies, we have no authority to consider the consistency of the BIA’s decisions, or to even begin comparing the circumstances of the present case against the circumstances in past cases where sua sponte relief was granted.”
The court also found that the Board’s refusal to exercise equitable tolling was reasonable when the petitioner could have raised the same arguments on appeal that eventually were recognized by the Ninth Circuit in later case law. “We infer this 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 us; and (2) she failed to do so despite the lack of impediments ‘to obtain[ing] vital information bearing on the existence of the claim.’ We agree.”
The full text of Lona v. Barr can be found here:
https://cdn.ca9.uscourts.gov/datastore/opinions/2020/05/15/17-70329.pdf