                               NOT FOR PUBLICATION                        FILED
                     UNITED STATES COURT OF APPEALS                       AUG 18 2020
                                                                       MOLLY C. DWYER, CLERK
                                                                        U.S. COURT OF APPEALS
                               FOR THE NINTH CIRCUIT

VAN DUNG LE, AKA Van Lee Dung,                    No.       19-70995

                 Petitioner,                      Agency No. A025-054-726

 v.
                                                  MEMORANDUM*
WILLIAM P. BARR, Attorney General,

                 Respondent.

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

                         Argued and Submitted July 9, 2020
                                 Portland, Oregon

Before: BENNETT and MILLER, Circuit Judges, and NAVARRO,** District
Judge.

      Van Dung Le petitions for review the Board of Immigration Appeals’ (BIA)

denial of his motion to reopen. We have jurisdiction under 8 U.S.C. § 1252 and

grant the petition in part and deny the petition in part.

      Le based his motion to reopen his 2000 immigration proceeding on a change


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
              The Honorable Gloria M. Navarro, United States District Judge for
the District of Nevada, sitting by designation.
in the law brought about by two cases—Lopez v. Gonzales, 549 U.S. 47 (2006),

and Rendon v. Holder, 764 F.3d 1077 (9th Cir. 2014)—that invalidated one of the

two bases for his removal (that he had been convicted of an aggravated felony).

Thus, Le contended he was entitled to “equitable tolling” of the deadline for filing

a motion to reopen. He also asserted that he was entitled to equitable tolling based

on his mental illness. In addition, Le argued that an extraordinary circumstance

justified sua sponte reopening—that he was mentally incompetent during his initial

immigration proceedings. Le’s final argument was that changed country conditions

show he would likely be persecuted upon his return to Vietnam.

      Le first sought reopening before an Immigration Judge (IJ) and appealed the

IJ’s denial to the BIA. The BIA affirmed the IJ’s denial. The BIA first affirmed the

IJ’s rejection of Le’s claim to equitable tolling based on Lopez and Rendon, stating

that “[a] subsequent change in the law over 14 years after the issuance of [his] final

removal order is not, however, a valid basis for equitably tolling the 90-day

deadline on a motion to reopen” and that “[t]he [IJ] properly declined to equitably

toll the 90-day deadline for the respondent’s motion for over 18 years.” In doing

so, the BIA cited to the IJ’s entire discussion denying equitable tolling, in which

the IJ determined that a change in the law did not serve as a proper basis for

equitable tolling and that Le did not present evidence that he acted with due

diligence.


                                          2
      The BIA rejected Le’s claim to equitable tolling due to a mental illness and

further found he did not present evidence that demonstrated that he was mentally

incompetent during his underlying immigration proceeding. The BIA then declined

sua sponte reopening as Le did not present an exceptional circumstance, pointing

in part to his lengthy criminal history. Finally, the BIA affirmed the IJ’s denial of

sua sponte relief based on changed country conditions as the record did not reflect

that Le would be persecuted in Vietnam for being Catholic, mentally ill, or having

applied for asylum elsewhere.

      We review the BIA’s “denial of a motion to reopen for abuse of discretion.”

Bhasin v. Gonzales, 423 F.3d 977, 983 (9th Cir. 2005). But our review of the

exercise of sua sponte power is limited only to legal or constitutional error. Bonilla

v. Lynch, 840 F.3d 575, 588 (9th Cir. 2016).

      As we have recently confirmed, changes in the law can serve as a basis for

equitable tolling. Lona v. Barr, 958 F.3d 1225, 1230 (9th Cir. 2020). Because the

BIA decided to the contrary, it legally erred. Even though certain changes in the

law can serve as a basis for equitable tolling, a petitioner must still establish that he

was prevented from filing because of a “deception, fraud, or error” and that he

acted with due diligence to discover such a defect. Iturribarria v. INS, 321 F.3d

889, 897 (9th Cir. 2003). Although the BIA does not specifically discuss Le’s due

diligence, it cites with approval the IJ’s opinion, including the IJ’s discussion of


                                           3
equitable tolling, in which the IJ analyzed Le’s diligence. The IJ noted, for

example, that Le “does not state when he first learned about Lopez and Rendon,

and does not list what efforts he undertook to rectify the issues he now raises with

respect to his removal proceeding. Thus, the Court is not persuaded that

Respondent acted diligently . . . .” The IJ also expressly found that Le did not show

“that he exercised due diligence during the years between the changes in law and

when he filed his Motion.”

      Reasonable minds could perhaps differ as to whether the BIA’s opinion

sufficiently indicates that the BIA adopted the IJ’s due diligence findings so as to

require us to deny the Petition on this ground. However, given that the BIA

committed legal error, that it never used the words “due diligence,” that it did not

explicitly state that it was adopting the IJ’s reasoning, and that it did not cite to

Matter of Burbano, 20 I. & N. Dec. 872 (B.I.A. 1994), we find that the BIA did not

adopt the IJ’s due diligence findings, and thus we may not review those findings.

Cf. Abebe v. Gonzales, 432 F.3d 1037, 1040 (9th Cir. 2005) (en banc) (reviewing

an IJ decision where the BIA cited Burbano and did not express disagreement with

the IJ); Medina-Lara v. Holder, 771 F.3d 1106, 1111 (9th Cir. 2014) (reviewing

the IJ’s decision to the extent incorporated by the BIA). Thus, we remand to the

BIA for it to determine whether Le is entitled to equitable tolling of the deadline




                                            4
for filing a motion to reopen in light of Lona, including whether he demonstrated

that he acted with the requisite due diligence.

      Le argues that the BIA erred in declining to exercise its sua sponte authority

by improperly finding that there was no fundamental change in the law and failing

to follow “its own precedent.” Le does not raise a legal or constitutional issue for

us to review. The term “fundamental change” is not a “legal premise” but an

“expression of discretion” against which we have no applicable standard to review.

Lona, 958 F.3d at 1235 (quoting Barajas-Salinas v. Holder, 760 F.3d 905, 908 (8th

Cir. 2014)). And our review of the BIA’s sua sponte authority “does not

encompass alleged inconsistencies between the BIA’s grants or denials of

discretionary relief.” Id. at 1238.

      Le’s argument that the BIA should have exercised its sua sponte authority to

reopen based on humanitarian asylum also fails as he admits that he did not raise

such a claim before the BIA, and, considering the BIA’s unfettered discretion in

exercising its sua sponte authority, Le identifies no legal or constitutional

requirement that the BIA recognize and raise the issue of humanitarian asylum on

its own.

      Finally, the BIA did not abuse its discretion in finding that Le failed to show

that his 2000 immigration proceeding was fundamentally unfair. The record does

not demonstrate that Le was then mentally incompetent or that he had any mental


                                           5
illness that resulted in his inability to meaningfully participate in his removal

proceedings. See Matter of M-A-M-, 25 I. & N. Dec. 474, 480 (BIA 2011).

     The petition for review is GRANTED in part; DENIED in part;

REMANDED.1




1
    Each party shall bear its own costs.

                                           6
