Unreported / Non-Citable
Background
Karen Gabriela Umanzor Escobar, a native and citizen of Honduras, was ordered removed in absentia by an Immigration Judge on July 3, 2019. An in absentia order may be rescinded on a motion to reopen filed within 180 days of the order if the noncitizen shows that her failure to appear was due to exceptional circumstances. The 180th day was Monday, December 30, 2019. On Friday, December 27, her counsel tried to file a motion to reopen without the Form EOIR-28, the notice of appearance that the regulations require when the moving party is represented.
On December 30, the immigration court gave notice that it had rejected the motion for lacking that form and mailed the rejection to counsel. Counsel did not refile with the form until January 10, 2020, several days after the deadline passed. The Immigration Judge denied the motion, and the Board of Immigration Appeals dismissed her appeal. The agency also made an alternative finding that she had not shown exceptional circumstances beyond her control caused her absence.
In her petition for review, she argued that the agency should have borrowed from asylum-filing timeliness rules and equitably tolled the deadline, and that her case differs from Ninth Circuit precedent because her attorney learned of the rejection only after the deadline expired.
The Court’s Holding
In an unpublished memorandum, a Ninth Circuit panel of Judges Bumatay, VanDyke, and Mendoza denied the petition. Reviewing the denial of a motion to reopen for abuse of discretion, the court asked whether the agency acted arbitrarily, irrationally, or contrary to law. It concluded the motion was not properly filed within the 180-day deadline, which the court described as a statutory bar with no exceptions when the noncitizen had proper notice. Singh-Bhathal applied an earlier, since-repealed version of the deadline, but the court found the current provision substantively identical. Following Cui v. Garland, it held a motion is untimely when the immigration court rejects it for a missing notice of appearance and counsel does not cure the defect before the 180 days end.
The court rejected the argument that Cui is distinguishable because counsel received the rejection notice after the deadline. By filing on the Friday before a Monday deadline, counsel ran the risk that any rejection would not arrive in time. Petitioner, who has the same attorney on review, raised no ineffective assistance claim and offered no reason the motion could not have been filed earlier.
The asylum-analogy and equitable tolling arguments were never presented to the agency. Citing 8 U.S.C. § 1252(d)(1), Umana-Escobar v. Garland, and Magana-Magana v. Bondi, the court held that because she failed to exhaust them, it could not consider them. Because untimeliness was dispositive, the court did not address the alternative exceptional-circumstances finding. The petition was denied; the court did not decide whether tolling could ever apply to this deadline.
Key Takeaways
- When a represented person moves to reopen, the motion must be accompanied by Form EOIR-28; a filing rejected for omitting it does not stop the 180-day clock.
- Counsel who files just before the deadline bears the risk that a rejection notice will arrive too late to cure the defect, as this case illustrates.
- Arguments for equitable tolling or for borrowing other immigration filing rules must first be presented to the agency, or the Ninth Circuit will not consider them.
- Because the court rested on untimeliness, it left undecided whether the petitioner showed exceptional circumstances for missing her hearing.
- This is a non-precedential memorandum that may be cited only as Ninth Circuit Rule 36-3 allows.
Why It Matters
This disposition shows how strictly the Ninth Circuit enforces procedural filing requirements for motions to reopen in absentia orders, even when a motion was physically submitted within the period. A filing rejected for a missing notice of appearance counts for nothing unless it is cured before day 180.
Because the decision is unpublished, it is not precedent except as provided by Ninth Circuit Rule 36-3. Its practical value is as an application of Cui v. Garland and the exhaustion requirement: practitioners should file well ahead of the deadline, include the notice of appearance, and raise tolling theories before the Board. It does not resolve whether equitable tolling is available.