                              NOT FOR PUBLICATION                        FILED
                    UNITED STATES COURT OF APPEALS                        JUN 21 2017
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                              FOR THE NINTH CIRCUIT

BEATRICE AKINYI RAJWAYI,                        No.    13-71099
                                                       14-71704
                Petitioner,
                                                Agency No. A099-869-550
 v.

JEFFERSON B. SESSIONS III, Attorney             MEMORANDUM*
General,

                Respondent.

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

                       Argued and Submitted May 19, 2017
                            San Francisco, California

Before: SCHROEDER and MURGUIA, Circuit Judges, and MCCALLA,**
District Judge.

      Petitioner Beatrice Akinyi Rajwayi, a native and citizen of Kenya, petitions

for review of the Board of Immigration Appeals’ (“BIA”) decision denying her

second motion to reopen deportation proceedings. We have jurisdiction under 8



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
            The Honorable Jon P. McCalla, United States District Judge for the
Western District of Tennessee, sitting by designation.
U.S.C. § 1252. We review for abuse of discretion, Singh v. INS, 213 F.3d 1050,

1052 (9th Cir. 2000), and we grant the petition for review and remand for further

proceedings.

      The BIA denied Rajwayi’s second motion to reopen because her motion was

number-barred and filed more than 90 days after the final order of removal was

issued. See 8 U.S.C. § 1229a(c)(7)(A), (C). In denying her second motion to

reopen, the BIA concluded that Rajwayi was not entitled to equitable tolling

because she had failed to identify any “deception, fraud, or error” that prevented

her from meeting the filing deadline, and she did not allege that she had previously

received ineffective assistance of counsel. The BIA also concluded that Rajwayi

failed to submit evidence establishing a material change in circumstances in Kenya

that would permit reopening her immigration proceedings under 8 C.F.R.

§ 1003.2(c)(3)(ii). Lastly, the BIA declined to exercise sua sponte authority to

reopen the proceedings.

      1.       To the extent Rajwayi argues that the BIA erred in exercising its

discretion to deny her request to sua sponte reopen her removal proceedings, we

lack jurisdiction to review this decision. See, e.g., Go v. Holder, 744 F.3d 604,

609–10 (9th Cir. 2014) (“[W]e lack jurisdiction to review the Board’s decision not

to invoke its sua sponte authority to reopen proceedings”); Sharma v. Holder, 633

F.3d 865, 874 (9th Cir. 2011) (same). We also conclude that the BIA did not abuse


                                           2
its discretion in denying Rajwayi’s second motion to reopen based on a change of

country circumstances in Kenya. Rajwayi’s submission of her relative’s affidavit

provides an alternative explanation for how Rajwayi obtained a forged newspaper

article in 2006, but it does not show that conditions in Kenya have materially

changed since Rajwayi’s prior hearing when she submitted the forged newspaper.

See Salim v. Lynch, 831 F.3d 1133, 1137 (9th Cir. 2016) (“[T]he changed country

conditions exception is concerned with two points in time: the circumstances of the

country at the time of the petitioner’s previous hearing, and those at the time of the

motion to reopen.”).

      2.     However, the BIA failed to properly consider whether Rajwayi is

entitled to equitable tolling. This court, sitting en banc, has held that equitable

tolling can apply in any circumstance where a petitioner is unable, through no fault

of her own and despite due diligence, to discover a vital or material aspect of her

claim. See, e.g., Socop-Gonzalez v. INS, 272 F.3d 1176, 1193 (9th Cir. 2001) (en

banc) (“The inability to obtain vital information bearing on the existence of a claim

need not be caused by the wrongful conduct of a third party.”). Here, Rajwayi

argues that she was unable, through no fault of her own and despite due diligence,

to discover a vital aspect of her claim until January 27, 2014—namely, that she

could not credibly testify during her immigration proceedings because she suffered

from severe mental conditions. Although Rajwayi put forth a potential basis for


                                           3
equitable tolling, the BIA misconstrued her argument and, therefore, failed to

consider whether Rajwayi’s unknown medical conditions constituted an

“extraordinary circumstance” beyond her control that prevented her from

discovering vital information for her claim. See Sagaydak v. Gonzales, 405 F.3d

1035, 1040 (9th Cir. 2005) (stating that the BIA is “not free to ignore arguments

raised by a petitioner”). Accordingly, we grant the petition for review and remand

to the BIA to properly consider Rajwayi’s equitable tolling argument.

      PETITION FOR REVIEW GRANTED; REMANDED.




                                         4
