                                                                              FILED
                            NOT FOR PUBLICATION                                JAN 31 2014

                                                                          MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


BLANCA ELIZABETH VASQUEZ-                        No. 09-72343
MAZARIEGOS,
                                                 Agency No. A073-225-132
              Petitioner,

  v.                                             MEMORANDUM*

ERIC H. HOLDER, Jr., Attorney General,

              Respondent.


                     On Petition for Review of an Order of the
                         Board of Immigration Appeals

                     Argued and Submitted December 2, 2013
                              Pasadena, California

Before: PREGERSON, BERZON, and CHRISTEN, Circuit Judges.

       The Board of Immigration Appeals (BIA) refused to toll the deadline for

petitioner Blanca Vasquez-Mazeriegos to file her motion to reopen pursuant to

section 203 of the Nicaraguan Adjustment and Central American Relief Act of

1997 (NACARA), Pub. L. No. 105-100, 111 Stat. 2160 (1997), amended by Pub.



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
L. No. 105-139, 111 Stat. 2644 (1997). See Albillo-De Leon v. Gonzales, 410 F.3d

1090 (9th Cir. 2005). We grant the petition insofar as it challenges this decision.

      When she applied for employment authorization, Vasquez-Mazariegos

provided the INS with her name, address, and the same Alien-Identification

Number the agency had used to identify her in previous deportation proceedings.

The then-Immigration and Naturalization Service (INS) approved her for

employment even though, as the government recognizes, Vasquez-Mazariegos’s

outstanding deportation order rendered her ineligible for employment

authorization. So the INS’s repeated approvals of Vasquez-Mazariegos’s

applications for employment authorization were in error. Those approvals

necessarily conveyed the message that there was no need for her to file a

NACARA motion to reopen a previous deportation order.

      Vasquez-Mazariegos joined her husband’s pending asylum application well

in advance of both the NACARA September 11, 1998, deadline for filing a motion

to reopen prior deportation orders, 8 C.F.R. § 1003.43(e)(1), and the November 18,

1999, deadline for filing a NACARA application for suspension of deportation or

special rule cancellation. See 8 C.F.R. § 1003.43(e)(2). Had the government

denied her employment authorization the first time she requested it, as it should

have, Vasquez-Mazariegos could have filed a timely motion to reopen her


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deportation proceedings under NACARA and a timely application for NACARA

relief. See 8 C.F.R. § 1003.43(e)(1). And NACARA required reopening of

deportation orders for applicants prima facie eligible for NACARA relief. See

NACARA § 203(c) (“Notwithstanding any limitation imposed by law on motions

to reopen removal or deportation proceedings (except limitations premised on an

alien’s conviction of an aggravated felony . . .), any alien who has become eligible

for cancellation of removal or suspension of deportation as a result of [NACARA]

may file one motion to reopen removal or deportation proceedings to apply for

cancellation of removal or suspension of deportation.”); Albillo-De Leon, 410 F.3d

at 1093 (“A motion to reopen will not be granted unless an alien can demonstrate

prima facie eligibility for relief under NACARA.”).

      Vasquez-Mazariegos’s failure to take the necessary step of moving to reopen

proceedings for NACARA relief until many years after these deadlines had passed

is thus directly traceable to her reliance on the government’s mistaken affirmative

approvals of her application for employment authorization, and the message

conveyed by those approvals—that she did not need to file a motion to reopen

deportation proceedings. Because Vasquez-Mazariegos provided the government

with the information it needed to find her prior deportation order, it was reasonable

for her to rely on that message. Her failure to recognize the need to file a motion


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to reopen in time to meet the September 11, 1998, filing deadline is therefore

“excusable.” See Socop v. Gonzalez v. INS, 272 F.3d 1176, 1184 (9th Cir. 2001)

(en banc). Accordingly, she is entitled to equitable tolling.

      The government suggests that equitable tolling does not apply because

Vasquez-Mazariegos would have known of the deportation order if she had

provided a valid address when the Order to Show Cause was issued. But this

argument ignores the message conveyed by the government’s repeated approval of

her work-authorization applications. As explained, by approving Vasquez-

Mazariegos for employment, the government sent her the erroneous message that

she did not need to file a motion to reopen deportation proceedings, because there

was no barrier to her receiving NACARA relief as a derivative of her husband’s

application.

      The NACARA motion-to-reopen filing deadline must, therefore, be tolled

until the date Vasquez-Mazariegos “definitively learn[ed]” of the existence of her

deportation order. Once the government alerted Vasquez-Mazariegos that there

was a problem with her derivative spouse application, she promptly retained an

attorney and filed a Freedom of Information Act (FOIA) request for information

about her case. She “definitively learn[ed]” of her outstanding deportation order

when she “received a copy of [her] court file pursuant to [the] FOIA request.”


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Albillo-De Leon, 410 F.3d at 1100. Albillo-De Leon holds that she had 238 days to

file her motion to reopen after “obtain[ing] [the] vital information bearing on the

existence of [her] claim.” Id. (citing NACARA § 203(c); 8 C.F.R.

§ 1003.43(e)(1)). Vasquez-Mazariegos filed the instant motion to reopen within

238 days of obtaining the vital information contained in her court file. Therefore,

her motion to reopen for NACARA relief was timely. Id.

      Finally, although it is possible to read the Immigration Judge’s (IJ) decision

as, in the alternative, denying the motion to reopen on discretionary grounds, it is

also possible to read that portion of the decision as the IJ merely declining to

exercise its discretion to reopen Vasquez-Mazariegos’s case sua sponte. The latter

reading is the most plausible, given that NACARA directs reopening upon a

showing of prima facie eligibility for NACARA relief. See Albillo-De Leon, 410

F.3d at 1093; Motion to Reopen: Suspension of Deportation and Cancellation of

Removal, 64 Fed. Reg. 13663, 13665 (March 22, 1999) (“[T]he dependent’s case

shall be reopened if the immigration judge finds that the dependent is prima facie

eligible for suspension or cancellation relief and if the dependent submits proof

that the principal alien has applied and is prima facie eligible for NACARA

relief.”). Moreover, the BIA did not explicitly adopt the IJ’s alternative ground for

denying Vasquez-Mazariegos’s motion, and as the BIA stated “with sufficient


                                          5
particularity its reasons for denying the petition, we review [the BIA’s] decision

and ‘[do] not rely on the IJ’s opinion in deciding the merits of [Vasquez-

Mazariegos’s case].’” Lahmidi v. INS, 149 F.3d 1011, 1012–13 (9th Cir. 1998)

(quoting Castillo v. INS, 951 F.2d 1117, 1120–21 (9th Cir. 1991)); see also

Rodriguez v. Holder, 683 F.3d 1164, 1169 (9th Cir. 2012).

      Because it held her application for NACARA relief untimely, the BIA never

addressed whether Vasquez-Mazariegos was prima facie eligible for NACARA

relief as a derivative spouse, so that her NACARA motion to reopen would have

been granted if timely filed. Our decision that equitable tolling applies thus

requires that we remand the case for further proceedings.

      The petition for review is GRANTED and the case is REMANDED for

consideration of the merits of Vasquez-Mazariegos’s motion to reopen.




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