Unreported / Non-Citable
Background
Flavia Beatriz Romero Zuniga, a native and citizen of Mexico, petitioned for review of a Board of Immigration Appeals decision affirming an Immigration Judge's denial of her motion to reopen removal proceedings and of sua sponte reopening. She had been ordered removed in absentia after not attending an October 28, 2005 hearing. She had paid her former attorney, Mr. Kim, to file a motion to continue and a motion to sever. Her motion to reopen came nearly 14 years later, in 2018. She argued she lacked notice of the hearing and, alternatively, that exceptional circumstances tied to Mr. Kim's representation warranted rescission.
An in absentia order may be rescinded on a motion filed within 180 days if the failure to appear was due to exceptional circumstances, or at any time if the person did not receive notice. The BIA found she had notice through Mr. Kim, who filed a Form EOIR-28, and agreed with the IJ that she had not shown due diligence. The panel decided the case without oral argument. It reviewed the denial of reopening for abuse of discretion, with factual findings reviewed for substantial evidence and legal questions reviewed de novo. The disposition is unpublished and not precedent except as Ninth Circuit Rule 36-3 provides.
The Court’s Holding
The court denied the petition. On notice, it held the BIA's conclusion legally correct and factually supported. Before the BIA, Romero Zuniga did not dispute that Mr. Kim filed a Form EOIR-28; she argued only that his appearance was limited to motions to continue and sever. Her contrary claim in court, that she never authorized the form, was contradicted by that position and unexhausted. The limited-appearance theory also failed: the form says limited-purpose appearances are not permitted, Mr. Kim's motion said he needed more time to prepare for the hearing, and she admitted a retainer agreement. Notice to counsel is constructive notice to the client.
On exceptional circumstances, the court held that even assuming she could establish them, her motion missed the 180-day deadline, and equitable tolling requires due diligence. The BIA did not abuse its discretion in affirming the no-tolling decision. She said she knew of the order, visited Mr. Kim's office and consulted multiple attorneys, but she named only one firm, visited in 2007, gave no dates or details, and did not explain why she could not proceed pro se across nearly 14 years.
For sua sponte reopening, review is limited to legal or constitutional error, and the court found none. She had in fact made an after-acquired-equities argument, identified no distinct legal standard for it, and the BIA clearly relied on exceptional circumstances. The court declined to review the due process claims: the challenge to Form EOIR-28 was unexhausted, the fundamental-unfairness argument was underdeveloped and forfeited, and the challenge to new rules limiting sua sponte authority was beside the point because she was not entitled to such reopening under the old rules, and she likely lacks standing.
Key Takeaways
- Notice to counsel who filed a Form EOIR-28 is constructive notice to the client, and a claimed limited-scope engagement does not avoid it because the form bars limited appearances.
- A position taken before the BIA can constrain later arguments; a new claim that counsel was never authorized to appear was treated as contradicted and unexhausted.
- Equitable tolling of the 180-day deadline requires specific evidence of diligence, and general references to consulting unnamed attorneys over nearly 14 years were insufficient.
- Court review of a denial of sua sponte reopening is confined to legal or constitutional error.
- The ruling denies the petition only; the court did not decide whether Mr. Kim's performance was actually deficient.
Why It Matters
This unpublished memorandum applies established Ninth Circuit authority rather than announcing a new rule. Its main lesson is how closely the court reads the administrative record: concessions made to the BIA limited what the petitioner could argue in court, and the text of Form EOIR-28 defeated her limited-appearance theory.
The case also illustrates the heavy burden on those seeking to reopen long-final in absentia orders. The BIA's decision is left in place. Practitioners should build a dated, documented record of diligence at the agency level and raise every theory, including constitutional ones, before the BIA. Because the disposition is nonprecedential, it has no binding effect, though it may be cited as Rule 36-3 permits.