Immigration Law Associates, PC

Bonilla v. Lynch

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Bonilla v. Lynch

United States Court of Appeals for the Ninth Circuit

February 12, 2016; July 12, 2016, Filed

No. 12-73853


Case Summary:

Bonilla, formerly a lawful permanent resident of the U.S., was deported to El Salvador after a misdemeanor firearms conviction. He later entered the U.S. illegally and filed a motion to reopen the deportation order alleging that his lawyer did not properly advise him on how to adjust his status after he married a US citizen (his lawyer did not warn him that a criminal record could get him deported). Although the motion was filed past the 90 day deadline, Bonilla argued that he was entitled to equitable tolling of the limitations period. Equitable tolling is a principle of law stating that a statute of limitations shall not bar a claim in cases where the plaintiff, despite use of due diligence, could not or did not discover the injury until after the expiration of the limitations period. The injury could include the attorney’s deception, fraud, or error.

Later, the Supreme Court announced a change in the law that put into question the legality of the original deportation and Bonilla added another argument to his filed motion to reopen, asking the Board of Immigration Appeals (“BIA”) to exercise its sua sponte authority to reopen his deportation order. The BIA denied both Bonilla’s motion and sua sponte request.

The Ninth Circuit agreed with the BIA that Bonilla was not entitled to equitable tolling and therefore denied review with regard to the adjustment of status issue that Bonilla had alleged. However, it did conclude that the BIA’s denial to reopen sua sponte was based on legal error and remanded to the BIA the sua sponte request to exercise its broad discretionary authority against the correct legal backdrop.



  • 8 C.F.R. § 1003.2(a) provides that the BIA may at any time reopen or reconsider on its own motion any case in which it has rendered a decision. The decision to grant or deny a motion to reopen or reconsider is within the discretion of the Board. Specifically, the BIA must be persuaded that the respondent’s situation is truly exceptional before it will intervene.
  • However, when presented with a BIA decision rejecting a motion for sua sponte reopening, the court may exercise jurisdiction to the limited extent of recognizing when the BIA has relied on an incorrect legal premise.
  • The judiciary has the power to exercise its authority over the executive branch when it determines that its decision is arbitrary, irrational, or contrary to law. This is a clear demonstration of separation of powers.

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