                                                                  NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT
                                ________________

                                       No. 14-4802
                                    ________________

                           JUVENAL VALDOVINOS-LOPEZ,

                                                  Petitioner

                                             v.

         ATTORNEY GENERAL OF THE UNITED STATES OF AMERICA,

                                               Respondent
                                    ________________

                         On Petition for Review of a Final Order
                          of the Board of Immigration Appeals
                      Immigration Judge: Honorable Andrew Arthur
                                   (No. A200-684-816)
                                   ________________

                       Submitted Under Third Circuit LAR 34.1(a)
                                     July 9, 2015

               Before: FUENTES, NYGAARD, and ROTH, Circuit Judges

                             (Opinion filed: October 16, 2015)

                                    ________________

                                       OPINION*
                                    ________________

* This disposition is not an opinion of the full court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
FUENTES, Circuit Judge

       Juvenal Valdovinos-Lopez petitions this Court for review of a decision of the

Board of Immigration Appeals denying his motion to reopen his removal proceedings.

Because the Board’s decision is premised on a mischaracterization of the applicable law,

we grant the petition and remand for further proceedings.

                                             I.

       Valdovinos-Lopez is a citizen of Mexico. In 1994, when he was less than one year

old, his parents brought him to the United States illegally. He lived here for quite some

time but was eventually arrested for stealing a car and sent to juvenile detention. On April

5, 2011, when he was seventeen, Valdovinos-Lopez was transferred to the custody of

Immigration and Customs Enforcement (ICE). Although he allegedly was eligible for

bond, he was not advised of this or of his right to judicial review. And, because of his

frequent transfers to different facilities, Valdovinos-Lopez had difficulty communicating

with his family. A few weeks later (apparently after he turned eighteen), Valdovinos-

Lopez was visited by ICE officers who presented him with a request for expedited

deportation and explained that he could be released to Mexico very quickly if he signed

the form. According to Valdovinos-Lopez, they did not explain that he could be eligible

for bond or relief from removal; they did not ask him if he had any fear of returning to

Mexico (which could provide the basis for a claim of asylum or withholding of removal);

and they did not advise him that signing the form would waive his right to pursue

immigration relief.



                                             2
       Valdovinos-Lopez signed the form. On April 28, 2011, he appeared before an

Immigration Judge in Pennsylvania at a “quick docket” removal hearing along with

sixteen other pro se respondents. The Immigration Judge addressed them as a group,

explained that they had waived their right to counsel and immigration relief in exchange

for quick deportation, and asked them a few questions before finding all of them

removable as charged. Valdovinos-Lopez alleges that he was intimidated by the manner

in which the Immigration Judge conducted the hearing and was afraid to speak out on his

own behalf. He was removed to Mexico the next day. Although his parents had hired an

attorney who filed a notice of appearance the day before the hearing, the attorney was

unable to intercede before his removal.

       Valdovinos-Lopez alleges that he had no family who could support him in Mexico

and that he feared being kidnapped by criminal gangs. After one week, he reentered the

United States, where he lived for a year until an arrest for possession of marijuana in the

State of Washington. On January 17, 2014, he was again detained by ICE and placed in

removal proceedings before an immigration judge in Washington. Seeking to reopen his

prior proceedings, Valdovinos-Lopez’s counsel requested a copy of the recording of his

April 28, 2011 hearing (known as a DAR-CD) from the immigration court in

Pennsylvania. In part because of technical problems at the court, counsel did not receive

the DAR-CD until four months later, in September 2014. Because the immigration judge

in Washington was not inclined to grant further continuances, counsel filed a motion to

reopen in the Pennsylvania immigration court before having received the DAR-CD. The

motion argued that ICE officers and the Immigration Judge (in Pennsylvania) violated

                                             3
due process because Valdovinos-Lopez was not informed of his rights or his possible

eligibility for relief and therefore did not knowingly and intelligently consent to removal.

       An alien has the statutory right to file one motion to reopen removal proceedings

within 90 days of the entry of an order of removal. See 8 U.S.C. § 1229a(c)(7)(C). After

that time, the only basis for reopening is a regulation that gives the immigration courts

the authority to reopen a removal proceeding sua sponte. See 8 C.F.R. § 1003.2(a).

Motions to reopen sua sponte are subject to what is known as the “post-departure bar,”

which precludes a person already removed from the United States from filing such a

motion. See 8 C.F.R. § 1003.2(d); Desai v. Attorney Gen. of U.S., 695 F.3d 267, 268 (3d

Cir. 2012). The post-departure bar does not, however, prohibit “statutory” motions to

reopen (i.e., those filed within the 90-day window). See Desai, 695 F.3d at 268, 270.

       Because Valdovinos-Lopez’s motion was filed years after the 90-day limit had

expired and after his removal to Mexico, the Immigration Judge construed it as a motion

to reopen sua sponte and denied it pursuant to the post-departure bar. Valdovinos-Lopez

appealed to the Board of Immigration Appeals. By this time, counsel had obtained the

DAR-CD, and therefore he requested that the Board construe the appeal as a separate

motion to reopen based on newly discovered evidence. He contended that, in part due to

delays in the transmission of the DAR-CD, the 90-day time limit should be equitably

tolled. With equitable tolling, he argued, the motion was timely and therefore one he was

statutorily entitled to file—rather than a motion to reopen sua sponte, which the post-

departure bar would prohibit.



                                             4
       The Board dismissed the appeal, holding that his motion was sua sponte rather

than statutory, and that the post-departure bar therefore applied. It explained that “after

the 90-day deadline expired, and in the absence of a motion to reopen that implicates a

statutory right, any motion to reopen is barred from consideration[,] . . . which includes

the concept of equitable tolling.” (App. 5.) It further noted that even if it could consider

equitable tolling, the relevant starting point was the April 28, 2011 removal order, rather

than counsel’s request for the DAR-CD in 2014. Valdovinos-Lopez would have to show

due diligence in pursuing his immigration case from that point onward.

       Valdovinos-Lopez filed a petition for review with this Court.

                                              II.

       We have jurisdiction under 8 U.S.C. § 1252(a)(1); the Board had jurisdiction

under 8 C.F.R. § 1003.1(b)(3). Where, as here, the Board issues a reasoned opinion, we

review that and look to the Immigration Judge’s ruling only to the extent that the Board

defers to it. See Huang v. Attorney Gen. of U.S., 620 F.3d 372, 379 (3d Cir. 2010).

       We generally review a denial of a motion to reopen removal proceedings for abuse

of discretion. See Pllumi v. Attorney Gen. of U.S., 642 F.3d 155, 158 (3d Cir. 2011). “The

discretionary decision is not disturbed unless it is found to be arbitrary, irrational, or

contrary to law.” Alzaarir v. Attorney Gen. of U.S., 639 F.3d 86, 89 (3d Cir. 2011).

        Motions to reopen sua sponte, however, are different. “Because such motions are

committed to the unfettered discretion of the [Board], we lack jurisdiction to review a

decision on whether and how to exercise that discretion.” Pllumi, 642 F.3d at 159. But

where the Board has rejected a motion for sua sponte reopening, “we may exercise

                                               5
jurisdiction to the limited extent of recognizing when the [Board] has relied on an

incorrect legal premise. In such cases we can remand to the [Board] so it may exercise its

authority against the correct legal background.” Desai, 695 F.3d at 269 (citation and

internal quotation marks omitted) (quoting Pllumi, 642 F.3d at 160).

       Thus, regardless of the nature of the motion on appeal, remand is appropriate if the

Board made an error of law.

                                            III.

       Valdovinos-Lopez argues that the Board erred in construing his appeal as a motion

to reopen sua sponte, rather than a statutory motion to reopen. With equitable tolling, he

argues, his motion was timely filed and avoids the post-departure bar. At the time of his

“quick docket” removal hearing, Valdovinos-Lopez was eighteen, was not represented by

counsel, was not aware of his possible eligibility for relief, had been detained away from

his family despite his possible entitlement to bond, and did not understand the

consequences of expedited removal. As a result, he argues that his delay in filing the

motion to reopen is due to “his reasonable reliance on governmental and judicial error

regarding his eligibility for relief.” (Valdovinos-Lopez Br. 34.)

       The Government first argues that Valdovinos-Lopez waived any argument that the

post-departure bar does not apply by failing to raise the issue in his opening brief. That

argument is, however, nearly the entirety of his opening brief. Next, the Government

argues that the post-departure bar applies. In so doing, it assumes that Valdovinos-

Lopez’s motion is a motion to reopen sua sponte and does not address the possibility that

equitable tolling could transform it into a statutory motion to reopen.

                                             6
       The Government’s assumption is mistaken. If Valdovinos-Lopez is entitled to

equitable tolling, and if equitable tolling would make his motion to reopen a timely one,

then the motion would be statutory—not sua sponte. See Alzaarir, 639 F.3d at, 89-90 &

n.2; see also Bolieiro v. Holder, 731 F.3d 32, 39-40 (1st Cir. 2013); Singh v. Holder, 658

F.3d 879, 884 & n.6 (9th Cir. 2011). As a result, the post-departure bar would not apply.

See Desai, 695 F.3d at 268, 270.

       Here, the Board mistakenly believed that equitable tolling was simply a factor to

take into account when deciding whether to reopen sua sponte, rather than a factor that

would extend the 90-day deadline for statutory motions. As a result, it applied the post-

departure bar without making a definitive ruling on Valdovinos-Lopez’s entitlement to

equitable tolling. This was an error of law, and it is our responsibility to remand so that

the Board may apply the correct legal principles. See Desai, 695 F.3d at 269; Alzaarir,

639 F.3d at 89.

       We acknowledge that the Board observed that Valdovinos-Lopez had misstated

the proper starting point for equitable tolling. In his brief to the Board, he argued

primarily that the immigration court’s delay in sending him the DAR-CD warranted

equitable tolling. The Board responded that this was beside the point, since Valdovinos-

Lopez also had to show that he had exercised due diligence in pursuing his immigration

case from the time he was removed in April 2011.

       It is true that “[d]ue diligence must be exercised over the entire period for which

tolling is desired.” Alzaarir, 639 F.3d at 90. But Valdovinos-Lopez’s brief to the Board

did not focus exclusively on the period that began when counsel requested the DAR-CD.

                                              7
He also argued that he would have fought his removal had he been informed of his rights

and his possible eligibility for relief at and before the removal hearing. These allegations

that he was misinformed may be relevant to the due-diligence inquiry. See id. The Board

did not consider this possibility, however, and the Government does not so much as

mention it on appeal.

       As both the Board and the Government have failed to meaningfully address

Valdovinos-Lopez’s equitable tolling argument, we believe that the appropriate course of

action is to remand the issue for consideration by the Board in the first instance. See

Konan v. Attorney Gen. of U.S., 432 F.3d 497, 501-02 (3d Cir. 2005) (holding that “if the

[Board] fails to address one of an applicant’s stated grounds for relief, the case must be

remanded for the [Board] to consider the claim”); Mahmood v. Gonzales, 427 F.3d 248,

252-53 (3d Cir. 2005) (noting that unless “the outcome is clear as a matter of law,” the

question of “[w]hether an alien has exercised due diligence generally should be

determined by the [agency] in the first instance, and typically a remand [is] in order

absent a finding of diligence (or lack thereof)”).

                                             IV.

       For the foregoing reasons, we will grant the petition for review, vacate the Board’s

order, and remand to the Board for further consideration consistent with this opinion.




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