NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

SERGEY ANATOLYEVICH 

MIKHALENKO,

Petitioner,

v.

MERRICK B. GARLAND, Attorney 

General,

Respondent.

No. 21-113

Agency No.

A076-058-341

MEMORANDUM*

On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted March 30, 2023

San Francisco, California

Before: M. SMITH and OWENS, Circuit Judges, and RODRIGUEZ, District 

Judge.

**

Sergey Mikhalenko, a citizen of Kazakhstan, petitions for review from 

the Board of Immigration Appeals’ (“BIA”) denial of his second motion to 

reopen his removal proceedings based on the vacatur of his state conviction and 

a fundamental change in law. The BIA held that sua sponte reopening was not 

* This disposition is not appropriate for publication and is not 

precedent except as provided by Ninth Circuit Rule 36-3.

** The Honorable Xavier Rodriguez, United States District Judge for 

the Western District of Texas, sitting by designation.

FILED

APR 20 2023

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 21-113

warranted because Mikhalenko’s conviction was valid at the time he was 

removed, his removal was correct under the law at the time it was ordered, and 

Mikhalenko was not diligent in raising the fundamental change in law 

argument. As the parties are familiar with the facts, we do not recount them 

here. We deny the petition. 

We have jurisdiction to review the BIA’s decisions regarding statutory 

motions to reopen, see Bonilla v. Lynch, 840 F.3d 575, 581 (9th Cir. 2016), but 

we may review the BIA’s denial of sua sponte reopening only for legal or 

constitutional error, id. at 588. We review questions of law de novo and the 

denial of a motion to reopen for abuse of discretion. Lara-Garcia v. Garland, 

49 F.4th 1271, 1275 (9th Cir. 2022). The agency abuses its discretion when its 

decision is “arbitrary, irrational, or contrary to law.” Bonilla, 840 F.3d at 581

(citation omitted). 

1. Mikhalenko admits that his statutory motion was untimely but 

argues that it should be equitably tolled. He contends that the BIA abused its 

discretion by failing to address his equitable tolling argument. Although the 

BIA did not expressly review equitable tolling, we do not remand because to do

so would be futile. See Lona v. Barr, 958 F.3d 1225, 1231 n.7 (9th Cir. 2020). 

Equitable tolling applies where the petitioner “is prevented from filing 

because of deception, fraud, or error, as long as the petitioner acts with due 

diligence.” Id. at 1230 (quoting Iturribarria v. INS, 321 F.3d 889, 897 (9th Cir. 

2003)). To assess whether the petitioner acted with due diligence, the court 
3 21-113

considers, inter alia, “whether petitioner made reasonable efforts to pursue 

relief.” Avagyan v. Holder, 646 F.3d 672, 679 (9th Cir. 2011).

There is no evidence in the record that Mikhalenko attempted to meet 

with immigration counsel or pursued relief in some other way between 2009 

when he was ordered removed and 2019 when he retained counsel. And we 

have previously upheld BIA determinations that a failure to act over a much 

shorter period of time indicated a lack of due diligence. See Goulart v. 

Garland, 18 F.4th 653, 655 (9th Cir. 2021) (denying review where the petitioner 

did not show any evidence that he pursued his rights between his 2013 removal 

and the 2018 change in law); Lona, 958 F.3d at 1231-32 (denying review where 

the petitioner did not pursue relief during the approximately three years between 

her removal order and the change in law and did not face any impediments to 

doing so). Further, the BIA has already held, in the context of sua sponte 

reopening, that Mikhalenko “did not act diligently” because the change in case 

law occurred almost four years before Mikhalenko’s first motion to reopen. 

Although the BIA did not explicitly analyze equitable tolling, it would 

necessarily find that Mikhalenko was not diligent and therefore not entitled to 

equitable tolling. Thus, remand would be futile. See Gutierrez-Zavala v. 

Garland, 32 F.4th 806, 810 (9th Cir. 2022) (holding that there is no need to 

remand to the BIA to address an issue in the first instance where the agency

would necessarily reach the same result). 
4 21-113

2. Mikhalenko next argues that the BIA relied on multiple legal errors 

in its denial of sua sponte reopening. We disagree. Primarily he contends that 

the BIA erred by failing to understand that the vacatur of his state conviction 

nunc pro tunc nullified the legal basis of his removal order. But vacatur does 

not nullify the basis of a removal order such that reopening is required or such 

that the statutory time limits for reopening are set aside. See Perez-Camacho v. 

Garland, 54 F.4th 597, 601 (9th Cir. 2022) (upholding the BIA’s denial of an 

untimely motion to reopen filed based on the vacatur of the underlying 

conviction); Menendez-Gonzalez v. Barr, 929 F.3d 1113, 1117-19 (9th Cir. 

2019) (same). Even where the conviction supporting the removal order has 

been vacated, the grant of sua sponte reopening is discretionary.

The BIA also did not err in holding that Wiedersperg v. INS, 896 F.2d 

1179 (9th Cir. 1990) was inapplicable because it “was decided before the 

enactment of the statutory or regulatory time limits placed on the filings of 

motions.” We have previously rejected Wiedersperg on precisely this ground. 

Perez-Camacho, 54 F.4th at 607 n.13.

We do not have jurisdiction to review Mikhalenko’s argument that the 

BIA erred in creating a diligence requirement for sua sponte reopening because 

there is no law for us to apply to determine whether the BIA may permissibly 

treat diligence as a necessary condition for sua sponte reopening. See Ekimian

v. INS, 303 F.3d 1153, 1159 (9th Cir. 2002) (“Because we cannot discover a 
5 21-113

sufficiently meaningful standard against which to judge the BIA’s decision not 

to reopen . . . we hold that we do not have jurisdiction . . . .”). 

3. Finally, Mikhalenko argues that the BIA must reopen to avoid a 

gross miscarriage of justice due to a fundamental change in the law. However, 

the gross miscarriage of justice standard is used in reinstatement of removal 

proceedings to collaterally attack the underlying removal order, not to reopen. 

See Perez-Camacho, 54 F.4th at 605. Because there is no law to support 

reopening on this ground, this argument fails. See id. at 603-06 (describing the 

four mechanisms by which a noncitizen can challenge a removal order on the 

basis that the conviction underlying that order has been vacated). Though the 

BIA did not address this argument directly, it would necessarily deny it on 

remand because a gross miscarriage of justice does not provide a path to 

reopening. See Gutierrez-Zavala, 32 F.4th at 810 (holding that there is no need 

to remand where the agency is required to reach a certain result). 

PETITION DENIED.