FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

YUZI CUI,

Petitioner,

v.

MERRICK B. GARLAND, Attorney 

General,

Respondent.

No. 18-72030

Agency No.

A205-542-606

OPINION

On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted April 15, 2021

Pasadena, California

Filed September 23, 2021

Before: Richard A. Paez and Lawrence VanDyke, Circuit 

Judges, and Sharon L. Gleason,* District Judge.

Opinion by Judge VanDyke;

Partial Concurrence and Partial Dissent by Judge Paez

*The Honorable Sharon L. Gleason, United States District Judge for 

the District of Alaska, sitting by designation.
2 CUI V. GARLAND

SUMMARY**

Immigration

Denying Yuzi Cui’s petition for review of a decision of 

the Board of Immigration Appeals, the panel concluded that 

the BIA did not abuse its discretion in determining that Cui 

did not timely file a motion to reopen and did not commit 

legal error in declining to sua sponte reopen her case. 

Cui was ordered removed in absentia on March 4, 2014, 

and her counsel appealed that order to the BIA. On July 30, 

2014, counsel attempted to file before the IJ a motion to 

reopen, but the immigration court clerk rejected the motion, 

stating that Cui’s counsel was not counsel of record and that, 

because there was a BIA appeal pending, the immigration 

court was the wrong filing location. Counsel did not refile 

the motion, but filed a motion to remand with the BIA. The 

BIA returned the case to the immigration court in 2015. In 

November 2016, counsel filed a second motion to reopen, 

which the IJ denied, and the BIA dismissed Cui’s appeal. 

The panel explained that, in In re Guzman-Arguera, 22 

I. & N. Dec. 722 (BIA 1999), the BIA held en banc that it is 

without authority to consider a direct appeal from an in 

absentia order. Rather, a petitioner must first file a motion 

to reopen under 8 U.S.C. § 1229a(b)(5)(C)(i), which states 

that a petitioner may challenge an in absentia removal order

by filing a motion to reopen within 180 days after the date 

of the order of removal if the petitioner demonstrates that the 

** This summary constitutes no part of the opinion of the court. It 

has been prepared by court staff for the convenience of the reader.
CUI V. GARLAND 3

failure to appear was because of exceptional circumstances. 

The panel further explained that In re Guzman-Arguera

gives clear notice that the 180-day timeline will not be tolled 

or stayed when a petitioner mistakenly files an appeal to the 

BIA.

The panel concluded that the IJ’s in absentia order 

became final on August 31, 2014—at the end of the 180-day 

deadline. At that point, Cui had forfeited her right to seek 

reopening before the IJ, as well as her right to appeal to the 

BIA. The panel explained that, because in absentia orders 

may not be appealed to the BIA without first filing a motion 

to reopen before the IJ within 180 days, if the petitioner does 

not timely file such a motion before the IJ, the order becomes 

final at the end of the 180-day period. 

The panel rejected Cui’s arguments that the IJ’s in 

absentia removal order was not final and that her 

proceedings were still pending. First, Cui argued that she 

timely filed her 2014 motion to reopen, such that the case 

was still pending before the IJ. Rejecting this argument, the 

panel explained that substantial evidence supported the 

conclusion that the motion was rejected and not filed. 

Second, Cui argued that she timely appealed the IJ’s order, 

and the BIA remanded the decision, such that the case was 

pending before the IJ. The panel rejected that contention, 

explaining that the BIA made no decision on appeal and 

explicitly “returned”—rather than “remanded”—the record 

to the IJ, that the IJ’s in absentia order was final, and that the 

improper appeal did not toll the 180-day deadline.

The panel also concluded that the BIA did not abuse its 

discretion in denying Cui’s 2016 motion to reopen, 

explaining that the motion was untimely and did not 

articulate exceptional circumstances. The panel further 
4 CUI V. GARLAND

concluded that the BIA did not abuse its discretion in 

declining to equitably toll the 180-day deadline where Cui 

did not allege any claims of fraud or deceit. The panel also 

concluded that the BIA did not rely on an incorrect legal 

premise in declining to sua sponte reopen, observing that, 

although Cui claimed prima facie eligibility for adjustment 

of status, the BIA is entitled to deny a motion where, as here, 

the ultimate relief sought is discretionary. Finally, the panel 

noted that, while Cui is arguably a victim of ineffective 

assistance of counsel, she failed to raise any such claim and 

continued to retain her arguably ineffective counsel before 

this court on appeal. 

Concurring in part and dissenting in part, Judge Paez 

concurred in the majority’s denial of the petition as to Cui’s 

2016 motion to reopen, but disagreed with the determination 

that the BIA did not abuse its discretion by refusing to rule 

on the 2014 motion. Judge Paez wrote that the BIA 

erroneously determined that the motion was not timely filed 

in the immigration court, explaining that there was no legal 

basis for an immigration court clerk to reject a timely motion 

to reopen as having been filed in the wrong court. Judge 

Paez wrote that the clerk prevented Cui from vindicating her 

statutory right to move to reopen her in absentia order, and 

the BIA placed her in an impossible bureaucratic Catch-22 

and then faulted her for failing to find a way out. Judge Paez 

also concluded that the BIA erred by denying sua sponte 

reopening because that decision was tainted by its incorrect 

determination that Cui failed to timely move to reopen her 

in absentia order. Judge Paez would grant the petition and 

remand for consideration of Cui’s 2014 motion.
CUI V. GARLAND 5

COUNSEL

Shun C. Chen (argued), Law Offices of Shun C. Chen 

APLC, Irvine, California, for Petitioner.

Erik R. Quick (argued), Trial Attorney; Kiley Kane, Senior 

Litigation Counsel; Office of Immigration Litigation, Civil 

Division, United States Department of Justice, Washington, 

D.C.; for Respondent.

OPINION

VANDYKE, Circuit Judge:

Yuzi Cui petitions for review of the Board of 

Immigration Appeals’ (BIA) dismissal of her appeal of the 

Immigration Judge’s (IJ) discretionary denial of her 2016 

motion to reopen her 2014 removal proceedings.

Cui is a Chinese citizen who overstayed her work visa 

and applied for asylum. During the pendency of her 

immigration proceeding in 2014, Cui was arrested while out 

of state and neither she nor her counsel attended her merits 

hearing before the IJ. On March 4, 2014, the IJ ordered her 

removed in absentia. Although Cui engaged a second 

lawyer, that lawyer’s first act was to incorrectly file an 

appeal to the BIA of the in absentia order. In July 2014, 

Cui’s counsel attempted to file a motion to reopen before the 

IJ, but the immigration court clerk rejected and did not file 

the motion to reopen because of the pending appeal and 

because another attorney was counsel of record in the 

immigration court. Cui’s counsel did not attempt to rectify 

his errors or refile the motion to reopen within the statutorily 

allotted 180 days to challenge an in absentia order. 8 U.S.C. 
6 CUI V. GARLAND

§ 1229a(b)(5)(C)(i). Over two years later in 2016, after the 

BIA returned Cui’s case to the IJ for lack of jurisdiction to 

consider the erroneous appeal, Cui’s counsel again filed a 

motion to reopen before the IJ. Both the IJ and the BIA 

dismissed this 2016 motion to reopen as untimely. Cui 

petitions for review of the BIA’s dismissal.

Although procedurally complicated, Cui’s claims boil 

down to whether the BIA was required to look to the unfiled 

2014 motion to reopen while considering the untimely 2016 

motion to reopen. The record demonstrates that Cui’s 2014 

motion was never filed, and published en banc BIA 

precedent long predating this case dictates that the case 

progression here did not toll the 180-day deadline to file a 

motion to reopen. Thus, the BIA neither abused its 

discretion in determining that Cui’s 2016 motion was 

untimely nor legally erred by declining to sua sponte reopen 

her case.

I. FACTUAL AND PROCEDURAL BACKGROUND

Cui first entered the United States on a work-related B-1 

visa in November 2011 and returned to China without filing 

for asylum.1

 She then returned to the U.S. on another B-1 

visa in March 2012, and applied for asylum in July 2012. In 

October 2012, Cui received a Notice to Appear for 

overstaying her visa, and conceded removability. Cui’s 

counsel of record at the time was personally served in 

1 While Cui in her briefing disputes that she returned to China after 

entering the U.S. in 2011, her own declaration before the agency states 

that she “returned to China” after her first entry into the U.S. in 2011 

because she “knew . . . [her] work unit would be negatively affected” if 

she “did not return to China.”
CUI V. GARLAND 7

December 2012 with notice of a hearing set for March 4, 

2014.

On February 10, 2014, Cui was arrested in Tennessee 

and her travel documents were allegedly confiscated. On 

February 26, 2014, Cui’s counsel filed a motion to continue 

the March merits hearing. But the IJ did not grant the motion 

to continue prior to the hearing. When neither Cui nor her 

counsel appeared at the merits hearing on March 4, 2014, the 

IJ ordered Cui removed in absentia. Cui’s 180-day time 

limit to file a motion to reopen her proceedings to rescind the 

IJ’s order began that day. See 8 U.S.C. § 1229a(b)(5)(C)(i).

Cui then engaged her current counsel, Mr. Chen, who 

filed an appearance with the BIA, and on April 1, 2014 

improperly filed an immediate appeal of the IJ’s in absentia 

removal order with the BIA. See 8 U.S.C. § 1229a(b)(5)(C). 

The appeal argued that the prior attorney filed a motion to 

change venue (which does not appear in the record) due to 

Cui’s relocation to Tennessee, and that the IJ improperly 

denied the motion to change venue and issued an order of 

removal.

More than three months later, on July 30, 2014, Cui’s 

counsel attempted to file before the IJ a motion to reopen the 

IJ’s in absentia removal order, citing “changed 

circumstances” and explaining that Cui now had her travel 

documents and could attend a hearing—instead of 

explaining the statutorily required “exceptional 

circumstances” that prevented Cui (or her counsel) from 

appearing at the merits hearing. See 8 U.S.C. 

§ 1229a(b)(5)(C)(i), (e)(1). The immigration court clerk 

rejected, and did not file, the motion to reopen on August 19, 

2014, because (a) the BIA appeal was still pending, so the 

court clerk presumably perceived the appeal to have divested 

the immigration court of jurisdiction over the case, and 
8 CUI V. GARLAND

(b) Mr. Chen was not listed as counsel of record in the 

immigration court, and he had not filed the required motion 

to substitute as counsel in that court. Cui did not refile that 

motion to reopen after it was rejected, and the 180-day 

deadline to file such a motion ran on August 31, 2014. See

8 U.S.C. § 1229a(b)(5)(C)(i).

Then, before the BIA on October 3, 2014, Cui’s counsel 

filed a motion to remand Cui’s case to the immigration court. 

The BIA did not rule on the motion for over a year, and on 

October 16, 2015, the BIA returned (but did not “remand”) 

Cui’s case to the immigration court, noting that a motion to 

reopen before the IJ was the appropriate route to seek 

reconsideration of an in absentia removal order in Cui’s 

circumstances. See 8 U.S.C. § 1229a(b)(5)(C). In its order, 

the BIA cited to In re Guzman-Arguera, 22 I. & N. Dec. 722 

(BIA 1999), in which the BIA previously held en banc that 

it “is without authority to consider a direct appeal from an in 

absentia order,” and, in “return[ing] [the record] to the 

Immigration Court without further Board action,” id. at 723, 

the BIA majority opinion declined to incorporate the 

concurring judges’ recommendations to either “treat[] the 

appeal as a motion” or consider the petitioner’s “removal 

from the United States . . . stayed,” id. at 724 (Villageliu, J., 

concurring).

A. IJ Motion to Reopen Decision

More than two years after the first attempted motion to 

reopen, on November 4, 2016, Cui’s counsel filed a second 

motion to reopen, stating Cui’s “U.S. Citizen husband filed 

an I-130 petition . . . which was granted” by the U.S. 

Citizenship and Immigration Services, and Cui therefore 

“intends to file an adjustment of status.” On December 5, 

2016, the IJ denied this motion to reopen the in absentia 

removal order on the grounds that the motion was filed “two 
CUI V. GARLAND 9

years after the filing deadline” and because the motion also 

did not allege “exceptional circumstances” that caused Cui 

to miss her original hearing. The IJ further denied sua sponte 

reopening, noting Cui did not merit an exercise of discretion 

because Cui’s approved I-130 petition was granted “during 

her protracted unauthorized presence in the United States” 

and the IJ would not “credit [her] for after-acquired equities, 

thereby undermining the INA, circumventing the 

regulations, and rewarding [her] for disregarding the Court’s 

order.”

B. BIA Motion to Reopen Decision

Cui appealed to the BIA, which dismissed the appeal. 

Cui then petitioned for review to this court, but this court 

granted the government’s unopposed motion to remand back 

to the BIA because page 3 of the IJ’s decision was not 

included in the Record of Proceeding. Upon reconsideration 

of the full IJ opinion, a majority of the BIA panel dismissed 

Cui’s appeal.

The BIA addressed Cui’s argument that the IJ erred in 

finding her 2014 motion to reopen was not filed and noted 

that because the “motion was not accepted for filing” it was 

“understandable that the [IJ] did not reference [the merits of 

the 2014 motion] in the decision under review.” The BIA 

also disagreed with Cui’s claim that the BIA “implicitly 

granted tolling” of the 180-day deadline when it returned the 

record to the IJ in its October 2015 decision, because “the 

decision explicitly state[d] that the record [was] returned . . .

without further action.” The BIA also concluded it would 

not equitably toll the deadline because Cui “has not offered 

any indication that deception, fraud, error, or ineffective 

assistance of counsel precluded her from timely filing her 

motion to reopen in the proper location.”
10 CUI V. GARLAND

Lastly, the BIA determined that because the BIA had 

returned the record to the IJ after Cui’s motion to remand, 

such action did not constitute a remand and the IJ’s in 

absentia removal order was “in fact final,” citing the 

regulation that defined a final decision of the IJ as one for 

which the time to appeal has expired. The BIA thus affirmed 

the IJ’s conclusion that the 2016 motion to reopen was 

untimely. The BIA also agreed with the IJ that Cui’s 2016 

motion to reopen did not allege exceptional circumstances 

and was properly denied “for this independent reason.” The 

BIA concluded that the IJ did not abuse its discretion in 

denying sua sponte reopening because Cui did “not 

identif[y] other equities besides potentially becoming 

eligible for relief during the time in which she resided in this 

country without legal status.”

II. STANDARD OF REVIEW

We have jurisdiction to review final removal orders 

under 8 U.S.C. § 1252(a)(1) and to review the BIA’s denial 

of a motion to reopen for abuse of discretion. Najmabadi v. 

Holder, 597 F.3d 983, 986 (9th Cir. 2010). “Motions for 

reopening of immigration proceedings are disfavored,” and 

as such, “the Attorney General has ‘broad discretion’ to 

grant or deny such motions.” INS v. Doherty, 502 U.S. 314, 

323 (1992) (citation omitted). The BIA only abuses its

discretion when the decision is “arbitrary, irrational or 

contrary to law.” Azanor v. Ashcroft, 364 F.3d 1013, 1018 

(9th Cir. 2004) (citation omitted).

III. MOTION TO REOPEN

8 U.S.C. § 1229a(b)(5)(C)(i) states that a petitioner may 

challenge an in absentia removal order by filing “a motion 

to reopen . . . within 180 days after the date of the order of 

removal if the alien demonstrates that the failure to appear 
CUI V. GARLAND 11

was because of exceptional circumstances.” Over twenty 

years ago, the BIA interpreted this provision in an en banc 

published opinion to mean that the BIA “is without authority 

to consider a direct appeal from an in absentia order” and a 

petitioner must first file a motion to reopen before an IJ and 

“exhaust[] this avenue of relief” before she may “file an 

appeal with the Board.” In re Guzman-Arguera, 22 I. & N. 

Dec. at 723. Cui advances a variety of arguments claiming 

the IJ’s in absentia removal order was not final and that she 

filed a timely motion to reopen, but the record rebuts her 

assertions.

A. The IJ’s Removal Order was Final.

A removal order “become[s] final upon the earlier of (i) a 

determination by the [BIA] affirming such order; or (ii) the 

expiration of the period in which the alien is permitted to 

seek review of such order by the [BIA].” 8 U.S.C. 

§ 1101(a)(47)(B); see 8 C.F.R. § 1003.39. Because in 

absentia removal orders may not be appealed to the BIA 

without first filing a motion to reopen the order before the IJ 

within 180 days of the order, 8 U.S.C. § 1229a(b)(5)(C)(i); 

In re Guzman-Arguera, 22 I. & N. Dec. at 723, if the 

petitioner does not timely file such a motion before the IJ the 

order becomes final at the end of the 180-day period. “[T]he 

period in which the alien is permitted to seek review of such 

order by the [BIA]” also expires at that time, id.

§ 1101(a)(47)(B)(ii), because, while the alien could have

sought BIA review after first exhausting her motion to 

reopen before the IJ, once the petitioner fails to file a timely 

motion with the IJ under § 1229a(b)(5)(C)(i), the ability to 

ultimately appeal to the BIA expires along with the 180-day 

deadline to seek reopening before the IJ.

In this case, the IJ’s in absentia removal order became 

final on August 31, 2014—at the end of 
12 CUI V. GARLAND

§ 1229a(b)(5)(C)(i)’s 180-day deadline to file a motion to 

reopen with the IJ. At that point, Cui had forfeited not only 

her right to seek reopening before the IJ, but also her right to 

appeal her in absentia removal to the BIA under the BIA’s 

authoritative interpretation of § 1229a(b)(5)(C)(i) in In re 

Guzman-Arguera.

Cui disagrees, arguing that the IJ’s in absentia removal 

order was not final and that her removal proceeding is still 

pending. She advances two arguments for this proposition, 

suggesting that she either (a) timely and properly filed a 

motion to reopen on July 30, 2014, that is still pending 

adjudication by the IJ, or (b) timely appealed the IJ’s in 

absentia removal order and the BIA remanded the decision 

such that it is currently pending review before the IJ. 

Because Cui never properly filed a motion to reopen her 

removal proceedings within the statutorily allotted 180 days 

from date of the removal order, and because the BIA’s 

published en banc precedent dictates that returning the 

record in such a case involving an improper appeal does not 

toll the 180-day deadline, there are no proceedings pending 

before the IJ and Cui’s removal order was final upon 

expiration of the 180 days after March 4, 2014.

i. The July 2014 motion to reopen was rejected by 

the filing clerk and not filed.

Whether a filing was rejected or accepted is a question 

of fact, and we review the BIA’s factual determinations for 

substantial evidence. Najmabadi, 597 F.3d at 986. Cui and 

her then-counsel had notice of her merits hearing, and 

neither attended. Once the IJ entered the in absentia removal 

order, Cui had to file a motion to reopen within 180 days to 

challenge that order. 8 U.S.C. § 1229a(b)(5)(C)(i). Cui’s 

new counsel attempted to file a motion to reopen within the 
CUI V. GARLAND 13

180-day timeline2 after incorrectly filing an appeal, but 

substantial evidence supports the BIA’s conclusion that the 

motion to reopen was rejected and not filed by the 

immigration court clerk. The record contains a notice 

rejecting the attempted filing of the 2014 motion, which was 

mailed to Cui’s counsel with fourteen days left before the 

180-day window to challenge the in absentia order closed. 

The court clerk’s rejection stated that because Cui’s new 

counsel was not counsel of record before the IJ he could not 

file the motion3 and, because there was a BIA appeal 

2 The 2014 motion to reopen did not explain what “exceptional 

circumstances” prevented Cui (or, more importantly, her attorney) from 

appearing at the merits hearing. Such “exceptional circumstances” could 

include “battery or extreme cruelty to the alien . . . , serious illness of the 

alien, or serious illness or death of the spouse, child, or parent of the 

alien, but not including less compelling circumstances[] beyond the 

control of the alien.” 8 U.S.C. § 1229a(e)(1). Cui’s motion simply stated 

that her “travel documents were taken away” and were now “returned” 

such that she could now personally “appear . . . for a merit hearing.” The 

dissent criticizes us for noting these problems with Cui’s motion, 

claiming Cui “plainly provides an account of the circumstances that 

prevented her from appearing.” Though we are skeptical these 

circumstances constitute “exceptional circumstances” under the statute, 

ultimately it doesn’t matter because Cui’s motion gives no explanation 

as to why her counsel could not be present.

3 Cui’s new counsel, Mr. Chen, served a copy of an Entry of 

Appearance in the immigration court together with the motion to reopen 

on July 30, 2014. But Mr. Chen did not submit a written or oral motion 

to substitute as counsel, which is procedurally required when a petitioner 

is already represented. 8 C.F.R. § 1003.17(b). That reason given by the 

clerk’s office for rejecting the motion is supported by the immigration 

court’s procedural rules. See id.
14 CUI V. GARLAND

pending, the immigration court was the wrong filing 

location.4

Importantly, Cui did not attempt to refile the July 2014 

motion to reopen by the 180-day statutory deadline. Cui’s 

counsel had (including the day the rejection notice was 

mailed) fourteen days left before the 180 days to refile a 

motion to reopen before the deadline would run on August 

31, 2014 (which was a Sunday, so he could have filed as late 

as Monday, September 1, 2014). In those fourteen days, 

counsel did not (a) attempt to dismiss or remand the 

4 As already noted, a motion to reopen an in absentia removal 

proceeding can only be filed with the immigration court. 8 U.S.C. 

§ 1229a(b)(5)(C)(i). But as the court clerk noted, there was an 

(improper) appeal pending, so it was understandable that the court clerk 

included this point in her rejection notice. Generally speaking, an appeal 

to the BIA will divest the IJ of jurisdiction. See 8 C.F.R. 

§ 1003.23(b)(1); In re Valles-Perez, 21 I. & N. Dec. 769, 771 (BIA 1997) 

(“[O]nce an appeal is filed with the [BIA], the Immigration Court ... loses 

jurisdiction over the matter.”); Matter of H-, 20 I. & N. Dec. 611, 612 

n.1 (BIA 1992) (“Since the immigration judge had certified his decision 

to this Board on March 6, 1992, he no longer retained jurisdiction over 

the applicant’s case. . . .”); see also Puc-Ruiz v. Holder, 629 F.3d 771, 

782 (8th Cir. 2010) (“Under BIA precedent and established policy, an IJ 

loses jurisdiction over a removal case once the alien files a Notice of 

Appeal with the BIA. In re Aviles, 15 I. & N. Dec. 588, 588 (BIA 1976); 

In re Mintah, 15 I. & N. Dec. 540, 541 (BIA 1975); Board of 

Immigration Appeals Practice Manual § 4.2(a)(ii).”).

The dissent objects to our assertion that the immigration court 

partially relied on the impending appeal as grounds for rejecting the 

filing, maintaining we “rel[y] on facts not in the record” because “there 

is no language . . . anywhere in the record indicating that an immigration 

court clerk determined that ‘there was an (improper) appeal pending.’” 

But the BIA specifically acknowledged and accepted the IJ’s ruling that 

the motion was rejected because “the listing of a different attorney from 

the respondent’s counsel of record and the pendency of the respondent’s 

appeal before the Board” (emphasis added).
CUI V. GARLAND 15

erroneous appeal pending before the BIA or (b) file a motion 

to substitute counsel with the immigration court. “Parties 

are expected to exercise due diligence” when an improperly 

filed submission is “rejected by the Immigration Court with 

an explanation for the rejection. . . . The term ‘rejected’ 

means that the filing is returned to the filing party because it 

is defective and therefore will not be considered by the 

Immigration Judge.” Immigration Court Practice Manual, 

EOIR 39 (last revised Sept. 30, 2014), 

https://www.justice.gov/sites/default/files/eoir/legacy/2014/

09/30/Practice_Manual_1-27-14.pdf (quoting Chapter 

3.1(d)(i)) (manual authorized under 8 C.F.R. 

§§ 1003.0(b)(1)(i), 1003.9(b)(1)).

Cui’s counsel’s first mistake, filing an improper appeal, 

was not alone fatal. Once the immigration court rejected his 

filing, all he needed to do was withdraw Cui’s improper 

appeal to the BIA, fix the problem with his EOIR-28 form, 

and refile with the immigration court within the fourteen 

days still left on Cui’s 180-day clock. He never did that. In 

fact, he took no action on Cui’s case—in the BIA or 

immigration court—until months later. Substantial evidence 

supports the BIA’s conclusion that the July 2014 motion to 

reopen was properly rejected and never filed. Cui thus did 

not properly file a motion to reopen within the statutory 

timeline.5

5 The dissent characterizes Cui as being caught in “an impossible 

bureaucratic Catch-22” and maintains there was “nothing Cui could have 

done to overcome the clerk’s erroneous determination that the 

immigration court was the ‘incorrect filing location.’” To the extent Cui 

found herself in a Catch-22, it was entirely of her and her lawyer’s own 

making. Had her lawyer not ignored the agency’s long-standing 

procedural requirements or properly filed his motion to substitute 
16 CUI V. GARLAND

ii. When the BIA “returned the record” to the IJ, it 

did not “remand” the case.

The statutory timeline to file a motion to reopen was also 

not extended by any procedural action taken by the BIA. As 

discussed, Cui initially filed an appeal with the BIA instead 

of filing a motion to reopen. After receiving the immigration 

court’s rejection of the July 2014 motion to reopen filing, 

Cui’s counsel months later on October 3, 2014, filed with the 

BIA a motion to remand the appeal back to the IJ (instead of 

simply withdrawing the appeal). In responding over a year 

later to Cui’s motion to remand, the BIA did not grant the 

motion to remand, but instead explained why the appeal was 

procedurally incorrect and stated that “the record will be 

returned to the Immigration Court without further Board 

action.” Cui claims that this statement means the BIA 

remanded the case, and thus “[t]he legal status of the case is 

[still] pending” because the IJ was required to do something 

with the case after the “remand,” which it has never done.

The BIA’s interpretation of the legal force given to a 

prior order is a legal determination we review de novo, see 

Lopez-Urenda v. Ashcroft, 345 F.3d 788, 791 (9th Cir. 

2003), but with deference to the BIA’s interpretation of the 

statutes governing its own jurisdiction, see Karingithi v. 

Whitaker, 913 F.3d 1158, 1161–62 (9th Cir. 2019) (adopting 

the BIA’s interpretation of its “jurisdiction over 

[petitioner’s] removal proceedings” because “[t]he BIA’s 

interpretations of its regulations are due ‘substantial 

deference’” (citation omitted)). Applying deferential 

review, “return” and “remand” are different courses of 

action by the BIA, and the BIA declined to address the merits 

counsel—or corrected these errors before the deadline once he was 

made aware of them—none of this would have happened.
CUI V. GARLAND 17

of the appeal or use the word “remand” in its four-sentence 

order.

The BIA noted that Cui “fil[ed] an appeal with the [BIA],

rather than [correctly] . . . filing a motion to reopen with the 

[IJ] in accordance with” statutory law, and thus the BIA 

“returned” the record rather than granting Cui’s motion to 

remand. This language is identical to the language used in 

the BIA’s en banc decision cited by the BIA in this case: In 

re Guzman-Arguera, 22 I. & N. Dec. 722 (BIA 1999). Under 

In re Guzman-Arguera, the BIA “is without authority to 

consider a direct appeal from an in absentia order,” and, in 

“return[ing] [the record] to the immigration court without 

further Board action,” id. at 723, the BIA declined to adopt 

the minority’s suggested approach, refusing to “treat[] the 

appeal as a motion” or consider the petitioner’s “removal 

from the United States . . . stayed” during the improper 

appeal to the BIA. Id. at 724 (Villageliu, J., concurring). In 

re Guzman-Arguera, which is now over two decades old, 

gives clear notice to any immigration practitioner that the 

180-day timeline to file a motion to reopen before the IJ will 

not be tolled or stayed when a petitioner mistakenly files an 

appeal to the BIA instead of correctly filing a motion to 

reopen before the IJ. Id. at 723–24.

The BIA thus reasonably treated Cui’s improper appeal 

as being withdrawn by Cui’s motion to remand. When an 

appeal is withdrawn, “[i]f the record has been forwarded on 

appeal, . . . and, if no decision in the case has been made on 

the appeal, the record shall be returned and the initial 

decision shall be final to the same extent as if no appeal had 

been taken.” 8 C.F.R. § 1003.4 (emphases added). As the 

BIA made no decision on appeal and explicitly “returned” 

the record to the IJ, the IJ’s “initial decision [was] final,” id., 
18 CUI V. GARLAND

not implicitly tolled,6 and the time in which Cui could 

challenge the decision expired 180 days after March 4, 2014, 

on August 31, 2014. 8 C.F.R. § 1003.39 (“[T]he decision of 

the [IJ] becomes final upon . . . expiration of the time to 

appeal. . . .”).7

B. The November 2016 Motion to Reopen was Untimely.

i. The 2016 Motion to Reopen was untimely and 

does not meet the requirements of 

§ 1229a(b)(5)(C)(i).

Cui filed a second motion to reopen on November 4, 

2016. This motion was filed over two and a half years after 

Cui’s March 4, 2014 removal order and was therefore 

untimely. 8 U.S.C. § 1229a(b)(5)(C)(i); 8 C.F.R. 

6 The BIA rejected Cui’s argument that its “remand” (according to 

Cui) served to implicitly toll the 180-day deadline imposed by statute, 

noting that “the record [was] returned” and there was no “decision 

[made] on [Cui’s] appeal.” Before this court, Cui sets out her 

disagreement with the BIA in her “Statement of the Case” section, but 

“makes no substantive argument about either ‘implicit tolling’ or the 

‘law of the case’ in her brief.” Cui thus waives this issue on appeal. See 

Castro-Perez v. Gonzales, 409 F.3d 1069, 1072 (9th Cir. 2005).

7 Although the dissent cites the BIA’s decades-old Guzman-Arguera 

decision repeatedly without once disagreeing with it, it never 

acknowledges the controlling force of that precedent in this case. If 

Cui’s counsel had followed Guzman-Arguera’s clear guidance and 

properly filed her motion to reopen before the IJ instead of improperly 

trying to directly appeal her in absentia removal to the BIA (and then 

treating that improper appeal as tolling her deadline in the immigration 

court, contra Guzman-Arguera), her motion to reopen may have been 

properly considered by the immigration court, assuming her counsel also 

properly substituted as new counsel in the IC.
CUI V. GARLAND 19

§ 1003.23(b)(4)(ii).8 The BIA did not abuse its discretion in 

denying the untimely motion to reopen. Singh-Bhathal v. 

INS, 170 F.3d 943, 946 (9th Cir. 1999).

The 2016 motion to reopen also did not articulate 

exceptional circumstances beyond Cui’s control that caused 

her to miss her original merits hearing. See 8 U.S.C. 

§ 1229a(b)(5)(C)(i), (e)(1). Instead, the motion requested in 

a single line that Cui’s removal proceedings be reopened 

because her “U.S. Citizen husband filed an I-130 Petition 

with CIS, which was granted, and [Cui] intends to file an 

adjustment of status with CIS.” It never mentions either the 

IJ’s March 2014 in absentia order or Cui’s July 2014 motion 

rejected by the immigration court. Cui did not establish in 

her 2016 motion to reopen that “exceptional circumstances” 

caused her to miss her hearing, and the BIA was thus within 

its discretion to deny the motion even if it was timely—

8 Even if we were to credit Cui’s argument that “8 U.S.C. 

§ 1229a(c)(7)(C)(i) governs the deadline for Cui’s Second Motion to 

Reopen,” meaning that Cui had an additional 90 days to appeal the denial 

of filed motion to reopen after the 180-day deadline of August 31, 2014, 

Cui’s second motion (filed November 4, 2016) was filed well after that 

additional 90-day deadline (November 29, 2014) and was still untimely. 

But we do not credit that argument. Section 1229a(c)(7)(C)(i) explicitly 

notes that there is an exception to the 90-day deadline where a petitioner 

is “filing . . . a motion to reopen an order entered pursuant to [an in 

absentia removal order] [which] is subject to the [180-day] deadline 

specified [in that] . . . subsection.” Id. § 1229a(c)(7)(C)(iii). Cui thus 

only had 180 days to file a motion to reopen based on “exceptional 

circumstances,” and never alleged that she did not receive notice of the 

merits hearing (which would allow a motion to reopen removal 

proceedings to be filed at any time). Id. § 1229a(b)(5)(C)(i), (ii).
20 CUI V. GARLAND

which it wasn’t. Cf. Arredondo v. Lynch, 824 F.3d 801, 806–

07 (9th Cir. 2016).9

ii. The BIA did not abuse its discretion in declining 

to equitably toll the 180-day deadline.

We review BIA decisions to deny equitable tolling of a 

motion to reopen for abuse of discretion. Lona v. Barr, 

958 F.3d 1225, 1230–32 (9th Cir. 2020). “This court . . .

recognize[s] equitable tolling of deadlines . . . on motions to 

reopen or reconsider [where] a petitioner [was] prevented 

from [timely] filing because of deception, fraud, or error, as 

long as the petitioner acts with due diligence in discovering 

the deception, fraud, or error.” Iturribarria v. INS, 321 F.3d 

889, 897 (9th Cir. 2003). Cui’s one-sentence 2016 motion 

to reopen does not allege any claims of fraud or deceit and 

simply asks to reopen the removal order so Cui may “file an 

adjustment of status with CIS.” The BIA therefore did not 

abuse its discretion in declining to equitably toll the 180-day 

deadline to file a motion to reopen where Cui failed to 

demonstrate due diligence in discovering any deception, 

9 Citing Townsend v. Columbia Operations, 667 F.2d 844, 849 (9th 

Cir. 1982) and Rosales-Martinez v. Palmer, 753 F.3d 890, 894–95 (9th 

Cir. 2014), Cui argues that precedent exists for the IJ to incorporate 

unfiled documents in the record and that the “[t]he legal effect of [Cui’s] 

First Motion to Reopen should be considered by this Court to make its 

ruling.” In Townsend, the unfiled documents were “identified in the 

complaint as writings and are fully described,” 667 F.2d at 848, and 

further “were physically in the courtroom at the argument, were referred 

to and relied on by both sides in that argument, and were the basis of the 

opinion dictated by the court at the end of the argument,” id. at 849. In 

Rosales-Martinez, the initial complaint “summarize[d]” the documents 

contained in a motion to supplement the record. 753 F.3d at 895. But 

Cui never described, or even identified, either the “March 2014 in 

absentia order or her [never-filed] July 2014 motion” in her November 

2016 motion to reopen.
CUI V. GARLAND 21

fraud, or error. See Luna v. Holder, 659 F.3d 753, 759 (9th 

Cir. 2011).

IV. DENIAL OF SUA SPONTE REOPENING

We may only exercise jurisdiction over BIA decisions 

denying sua sponte reopening “for the limited purpose of 

reviewing the reasoning behind the decisions for legal or 

constitutional error.” Bonilla v. Lynch, 840 F.3d 575, 588 

(9th Cir. 2016). Although Cui claims that she demonstrated 

prima facie eligibility for adjustment of status, and it was 

legal error to deny sua sponte reopening, “where the ultimate 

grant of relief is discretionary, as it is in the case of 

suspension of deportation, the BIA may determine that the 

movant is not entitled to relief even though [s]he meets the 

threshold requirements for eligibility.” Sequeira-Solano v. 

INS, 104 F.3d 278, 279 (9th Cir. 1997). And in exercising 

its discretionary authority, the Court finds that the BIA did 

not “rel[y] on an incorrect legal premise” in declining to sua 

sponte reopen Cui’s case. See Bonilla, 840 F.3d at 588 

(internal quotation marks omitted).10

V. CONCLUSION

While one could argue that Cui is a victim of ineffective 

assistance of counsel, she failed to raise any such claim and 

10 In any event, Cui did not demonstrate she was prima facie eligible 

for adjustment at the time of her merits hearing, because her marriage to 

her U.S. citizen husband occurred after her removal had been ordered. 

Cf. Malilia v. Holder, 632 F.3d 598, 600–01 (9th Cir. 2011) (determining 

a petitioner had established prima facie eligibility “to apply for an 

adjustment of status had the continuance been granted” because “[w]hile 

removal proceedings were pending, [petitioner] married . . . a United 

States citizen, who immediately filed an I-130 Adjustment of Status 

Application on [petitioner’s] behalf” (emphasis added)).
22 CUI V. GARLAND

continues to retain her arguably ineffective counsel before 

our court on appeal. Because we are limited to reviewing 

the arguments made in the briefs, we conclude both that the 

BIA did not abuse its discretion in determining Cui did not 

timely file a motion to reopen, and that the BIA did not 

commit legal error in declining to sua sponte reopen her 

removal proceedings.

PETITION DENIED.

PAEZ, Circuit Judge, concurring in part and dissenting in 

part:

I disagree with the majority’s determination that the BIA 

did not abuse its discretion by refusing to rule on Cui’s July 

30, 2014 motion to reopen. In my view, the BIA erroneously 

determined that the motion was not timely filed in the 

immigration court. There was no legal basis for an 

immigration court clerk to reject Cui’s timely motion to 

reopen as having been filed in the wrong court. In so doing, 

the clerk prevented Cui from vindicating her statutory right 

to move to reopen her in absentia order of removal. The BIA 

also erred by denying sua sponte reopening because that 

decision was tainted by its incorrect determination that Cui 

failed to timely move to reopen her in absentia order. I would 

grant the petition for review and remand for consideration of 

the merits of Cui’s 2014 motion to reopen.1

1 I concur in the majority’s denial of the petition as to Cui’s 

arguments about the propriety of her 2016 Motion to Reopen.
CUI V. GARLAND 23

I. The BIA abused its discretion in determining that 

Cui’s July 30, 2014 motion to reopen was not timely.

An application for relief from removal may challenge an 

in absentia removal order by filing “a motion to reopen . . .

within 180 days after the date of the order of removal if the 

[applicant] demonstrates that the failure to appear was 

because of exceptional circumstances.” 8 U.S.C. 

§ 1229a(b)(5)(C)(i). The BIA has interpreted this provision 

to require an applicant to exhaust relief by filing a motion to 

reopen with an immigration judge (“IJ”) before appealing to 

the BIA. In re Guzman-Arguera, 22 I. & N. Dec. 722, 723 

(BIA 1999).

An IJ ordered Cui removed in absentia on March 4, 2014, 

so her 180-day window to file a motion to reopen with the IJ 

closed on August 31, 2014. Cui sought to comply with the 

statutory and BIA requirements by timely filing a motion to 

reopen with the IJ on July 30, 2014, articulating the 

exceptional circumstances that prevented her from 

appearing. The immigration court, however, rejected her 

motion because a court clerk determined that the 

immigration court was the “incorrect filing location.”2

2 I agree with the parties and the majority opinion that the form 

checklist rejecting Cui’s motion was not completed by an immigration 

judge. There is no evidence than an immigration judge ever reviewed 

Cui’s 2014 motion to reopen. In the absence of evidence identifying who 

completed this form checklist, the BIA majority refers to the rejection by 

the “Immigration Court” (as distinct from the IJ). The government’s 

answering brief and the majority opinion assume the checklist was 

completed by an immigration court clerk. Maj. Op. 13–15. For 

consistency with the majority opinion, I also refer to the individual who 

completed the form checklist as an immigration court clerk.
24 CUI V. GARLAND

The court clerk’s rejection of the motion for this reason 

was wrong as a matter of law. The BIA majority noted as 

much when it returned Cui’s April 2014 appeal of the IJ’s in 

absentia order. It stated that the proper course of action was 

for Cui to file “a motion to reopen with the Immigration 

Judge in accordance with . . . 8 U.S.C. § 1229a(b)(5)(C).” 

Cui did just that on July 30, 2014. But her motion was 

wrongly rejected by an immigration court clerk. As BIA 

Member Wendtland, dissenting from the BIA’s denial of 

Cui’s 2014 motion to reopen, observed,

Indeed, the rationale for the Immigration 

Judge’s rejection of the filing was 

questionable, since she relied mainly on a 

finding that the Board was the proper filing 

location in view of the respondent’s appeal to 

us, but we subsequently remanded upon a 

determination that the proper forum for 

challenging the in absentia order was the 

Immigration Court.3

Rather than account for the immigration court clerk’s 

error, the BIA sidestepped the issue, suggested the clerk’s 

decision was unreviewable, and in so doing, placed Cui in 

an impossible bureaucratic Catch-22 and then faulted her for 

failing to find a way out. The BIA reasoned that Cui’s July 

30, 2014 motion to reopen

3 Even the government acknowledges the immigration court clerk’s 

erroneous rationale for rejecting Cui’s motion to reopen in its answering 

brief. Ans. Br. 21 (“[A]lthough the immigration clerk also checked a box 

stating that the immigration court was not, at that time, the correct filing 

location due to the pending Board appeal, that statement may have been 

incorrect.”).
CUI V. GARLAND 25

was not accepted for filing due to the listing 

of a different attorney from the respondent’s 

counsel of record and the pendency of the 

respondent’s appeal before the Board. Thus, 

because this motion never became part of the 

record until the respondent presented it with 

her appeal, it is understandable that the 

Immigration Judge did not reference it in the 

decision under review.

In effect, the BIA asserted that because the immigration 

court rejected the motion to reopen for filing, it was not part 

of the record on appeal. The BIA’s analysis ended there. The 

BIA did not state how the filing could be subject to appellate 

review. It did not address whether the immigration court 

clerk correctly rejected the filing. And the BIA provided no 

justification for its refusal to address the propriety of the 

immigration court clerk’s rejection of the motion. Yet, at the 

same time, the BIA admonished Cui that she was required 

to file her motion to reopen with the IJ. Thus, under the 

BIA’s own stated reasoning and logic, the immigration court 

clerk’s rejection of Cui’s motion because the immigration 

court was “the incorrect filing location” was clearly wrong. 

The BIA treated the immigration court’s legally erroneous 

rejection of Cui’s timely-filed July 30, 2014 motion to 

reopen as unreviewable, but simultaneously faulted her for 

failing to timely-file a motion to reopen with the 

immigration court and, on that ground, rejected all of Cui’s 

arguments for relief.

The majority gives three reasons for finding the BIA’s 

decision proper. None of them, however, have any support 

in law.
26 CUI V. GARLAND

First, the majority posits that Cui’s motion to reopen was 

deficient because it “did not explain what ‘extraordinary 

circumstances’ prevented Cui (or, more importantly, her 

attorney) from appearing at the merits hearing.” Maj. Op. 13

n.2. Cui’s motion plainly provides an account of the 

circumstances that prevented her from appearing and her 

communication with her counsel prior to the scheduled 

hearing. Regardless, the question presented in this appeal is 

not about the merits of the motion, but whether the filing was 

lawfully rejected. Cui’s filing was not rejected on this basis.

Second, the majority asserts that the immigration court’s 

error in rejecting the filing for improper location was 

actually Cui’s fault because, “as the court clerk noted, there 

was an (improper) appeal pending, so it was understandable” 

for the immigration court clerk to reject Cui’s filing for lack 

of jurisdiction. Maj. Op. 14 n.4. There are several problems 

with the majority’s reasoning. First, the majority relies on 

facts not in the record. There is no evidence that the “court 

clerk noted” that “there was an (improper) appeal pending.” 

Id. The only record evidence related to the rejection of Cui’s 

filing appears on a form checklist. The form included a 

checkbox marked next to the following entry:

Incorrect Filing Location (Case at BIA) –

This Immigration Court is not, at this time, 

the correct filing location. Our records 

indicate that the Board of Immigration 

Appeals is the correct filing location.

Contrary to the majority’s representation, there is no 

language in the form checklist or anywhere in the record 

indicating that the immigration court clerk determined that 

“there was an (improper) appeal pending” or that the IJ had 

been divested of jurisdiction. Maj. Op. 14 n.4. Indeed, the 
CUI V. GARLAND 27

form checklist was a document with no binding legal force. 

In particular, the “Incorrect Filing Location” entry that was 

marked lacks reference to any source of authority justifying 

the rejection on that basis. Notably, the “Incorrect Filing 

Location” reason for rejection does not even include a 

citation to the nonbinding Immigration Court Practice 

Manual (as most of the other entries on the form checklist 

do). But even if the checklist entry did include a citation to 

the Immigration Court Practice Manual, the checklist entry 

still could not stand for the proposition that the court clerk 

determined the court had been divested of jurisdiction, as the 

majority opinion implies, because there is no legal basis for 

an immigration court clerk to make determinations affecting 

the immigration court’s jurisdiction. Dep’t of Justice, 

Immigration Court Practice Manual, § 1.1(c) (2020), 

https://www.justice.gov/eoir/page/file/1258536/download 

(“The manual does not extend or limit the jurisdiction of the 

Immigration Courts as established by law and regulation.”).

Second, even if the form checklist implied what the 

majority suggests it does—that the immigration court clerk 

determined that the IJ lacked jurisdiction and, therefore, the 

immigration court could reject Cui’s filing—the majority’s 

reasoning still impermissibly relies on an invented fiction: 

the BIA did not affirm the rejection of the filing on this 

ground. Navas v. INS, 217 F.3d 646, 658 n.16 (9th Cir. 2000) 

(“[T]his court cannot affirm the BIA on a ground upon which 

it did not rely.”). In fact, the BIA did not address, defend, 

justify, or affirm the propriety of the immigration court 

clerk’s rejection of Cui’s filing at all.

Instead, the BIA accepted the fact of the rejected filing 

without any analysis, insulating the court clerk’s rejection of 

Cui’s filing from any review. However, neither the majority 

nor the BIA cite any legal basis for the court clerk’s authority 
28 CUI V. GARLAND

to make a legally wrong, yet unreviewable decision to refuse 

to file Cui’s motion. There is simply no support for the BIA’s 

view that an unnamed, unidentified immigration court clerk 

had unchecked authority to reject any filing for any reason, 

and in turn, to restrict Cui’s ability to access the immigration 

court’s lawful jurisdiction over her removal proceedings.

Third, and finally, the majority faults Cui because she 

“did not attempt to refile the July 2014 motion to reopen by 

the 180-day statutory deadline.” Maj. Op. 134. This appears 

to be a point about exhaustion of administrative remedies, 

although the majority provides no authority to explain its 

reasoning and, again, there is no basis for the majority to 

invoke this justification because the BIA did not rely on this 

reasoning. Navas, 217 F.3d at 658 n.16. Moreover, there is 

no indication that re-filing would have changed anything 

here. Although Cui could have rectified the first technical 

reason for rejecting her motion through refiling—the need 

for a motion to substitute counsel—there is nothing Cui 

could have done to overcome the clerk’s erroneous 

determination that the immigration court was the “incorrect 

filing location.” “It is axiomatic that one need not exhaust 

administrative remedies that would be futile or impossible to 

exhaust.” Singh v. Ashcroft, 362 F.3d 1164, 1169 (9th Cir. 

2004).

Thus, by locking Cui into a bureaucratic Catch-22 and 

then faulting her for failing to escape, the BIA abused its 

discretion. Its decision was “arbitrary, irrational,” and 

“contrary to law.” Azanor v. Ashcroft, 364 F.3d 1013, 1018 

(9th Cir. 2004) (citation omitted). The BIA’s unreasoned 

stamp of approval on the immigration court’s improper 

rejection of Cui’s motion to reopen is inconsistent with 

statutory and regulatory provisions, and its own precedent, 

see 8 U.S.C. § 1229a(b)(5)(C); 8 C.F.R. § 1003.23(b)(4)(ii); 
CUI V. GARLAND 29

In re Guzman-Arguera, 22 I. & N. Dec. at 723, and 

irrationally contradicts the BIA’s own reasoning elsewhere 

in this case.4

II. Considering the BIA’s erroneous determination that 

Cui’s July 30, 2014 motion was untimely, its 

reasoning for rejecting her motion for sua sponte 

reopening was legal error.

This court may only exercise jurisdiction over BIA 

decisions denying sua sponte reopening “for the limited 

purpose of reviewing the reasoning behind the decisions for 

legal or constitutional error.” Bonilla v. Lynch, 840 F.3d 575, 

588 (9th Cir. 2016). Because the reasoning underlying the 

BIA’s denial of sua sponte reopening was tainted by its 

erroneous determination that Cui’s 2014 motion to reopen 

was untimely, the BIA also erred in denying sua sponte 

reopening.5

4 The majority takes issue with this reference to Guzman-Arguera. 

Maj. Op. 18 n.7. As previously noted, In re Guzman-Arguera requires an 

applicant to challenge an in absentia removal order by filing a motion to 

reopen with an immigration judge, 22 I. & N. Dec. at 723. In that case, 

Guzman-Arguera had failed to file a motion to reopen with the 

immigration court altogether. Id. Here, Cui attempted to comply with 

Guzman-Arguera but was thwarted because the immigration court clerk 

improperly rejected her motion to reopen, precluding an immigration 

judge from ruling on it.

5 The majority incorrectly concludes that the BIA’s decision on sua 

sponte reopening lies beyond the bounds of this court’s review because 

the decision was discretionary. Maj. Op. 21. This is incorrect. While the 

BIA could have relied on its discretionary authority to deny sua sponte 

reopening of Cui’s case, it did not. Instead, the BIA provided legal 

reasoning to justify its denial. Those reasons are properly before this 

court for review. Bonilla, 840 F.3d at 588.
30 CUI V. GARLAND

The BIA observed that the sole basis for sua sponte 

reopening was that “the visa petition of [Cui’s] husband was 

approved over 2 years after she was ordered removed.” The 

BIA reasoned that in light of “these circumstances and the 

lack of any showing that the respondent was prevented from 

properly filing a motion to reopen within the required time 

frame, we uphold the ruling that the respondent has not 

shown that sua sponte reopening is warranted.” In support of 

its decision, the BIA cited INS v. Rios-Pineda, 471 U.S. 444, 

450–51 (1985) for the proposition that “equities obtained 

after the entry of a final deportation order do not create 

substantial equities,” and Matter of G-D-, 22 I. & N. Dec. 

1132, 1133–34 (BIA 1999) for the proposition that sua 

sponte reopening is “reserved for truly exceptional 

situations.”

However, because the BIA’s legal analysis was 

predicated on its erroneous conclusion that Cui’s July 30, 

2014 motion to reopen her in absentia order of removal was 

untimely, the BIA’s reasoning was legally erroneous.

First, because Cui’s July 30, 2014 motion to reopen was, 

in fact, timely filed, and has yet to be adjudicated by an IJ, 

her in absentia order of removal is not final. See 8 U.S.C 

§ 1229a(b)(5)(C) (“The filing of the Motion to Reopen 

described in [§ 1229a(b)(5)(C)((i) and (ii)] shall stay the 

removal of the [applicant] pending disposition of the motion 

by the immigration judge.”); 8 C.F.R. § 1003.23(b)(4)(ii). 

Thus, the BIA’s application of law to determine that Cui’s 

visa petition was “approved over 2 years after she was 

ordered removed” and was, thus, not entitled to much weight 

in its equities analysis, was incorrect.

Second, the BIA incorrectly assumed that Cui failed to 

“properly fil[e] a motion to reopen within the required time 
CUI V. GARLAND 31

frame,” and thus had not shown her situation was a “truly 

exceptional situation[]” under Matter of G-D-.

Thus, the BIA’s legal reasoning for denying sua sponte 

reopening was predicated on its mistaken determination that 

Cui’s July 30, 2014 motion to reopen was not properly filed. 

The BIA’s legal reasoning does not hold up when its mistake 

is corrected. The BIA legally erred in denying sua sponte 

reopening.

* * *

In my view, the BIA abused its discretion by refusing to 

rule on Cui’s July 30, 2014 motion to reopen because it 

erroneously determined that the motion was not timely filed 

in the immigration court. The BIA further erred by denying 

sua sponte reopening because its decision was tainted by its 

reliance on that incorrect determination. Therefore, I would 

grant the petition and remand for a merits determination of 

Cui’s 2014 motion to reopen.