Alcarez-Rodriguez v. Garland

                     FOR PUBLICATION

      UNITED STATES COURT OF APPEALS
           FOR THE NINTH CIRCUIT

FILIBERTO ALCAREZ-                                No. 21-411
RODRIGUEZ, AKA ASHLEY
                                                 Agency No.
RODRIGUEZ,
                                                A098-571-281
                Petitioner,
     v.                                           OPINION

MERRICK B. GARLAND, Attorney
General,

                Respondent.

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

                   Submitted March 9, 2023 *
                     Pasadena, California

                    Filed December 28, 2023

      Before: Ronald Lee Gilman, ** Danielle J. Forrest, and
               Holly A. Thomas, Circuit Judges.


*
 The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
**
  The Honorable Ronald Lee Gilman, United States Circuit Judge for
the Court of Appeals, 6th Circuit, sitting by designation.
2                ALCAREZ-RODRIGUEZ V. GARLAND


                  Opinion by Judge Gilman;
                 Concurrence by Judge Forrest


                          SUMMARY ***


                           Immigration

    The panel granted Ashley Rodriguez’s petition for
review of the Board of Immigration Appeals’ decision and
order denying her motion to remand for the consideration of
her application for asylum, withholding of removal, and
protection under the Convention Against Torture, and
remanded for the BIA to properly consider the merits of
Rodriguez’s motion.
    After setting a deadline for Rodriguez to file her
application for asylum and related relief, an Immigration
Judge sua sponte rescheduled the hearing several
times. When Rodriguez appeared for her hearing, her
counsel requested additional time, and later requested an
extension because he was having difficulty reaching
Rodriguez. The IJ denied the motion, vacated the upcoming
hearing date, and ordered Rodriguez’s removal. Rodriguez
challenged these decisions, and the BIA denied Rodriguez’s
motion to reopen, dismissed her appeal, and denied her
motion to remand.
   The panel held that in denying Rodriguez’s motion to
remand, the BIA abused its discretion by failing to address


***
   This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
                ALCAREZ-RODRIGUEZ V. GARLAND                  3


her arguments that she could establish prima facie eligibility
for relief with evidence that was unavailable at the time of
her filing deadline, namely evidence related to her criminal
history and medical conditions that was unavailable to her
during the relevant period because she was homeless and did
not have access to her personal documents. The panel
explained that both categories of evidence were highly
relevant to whether she could establish prima facie eligibility
for relief because of her status as an HIV-positive
transgender woman and rape survivor. The panel remanded
for the BIA to consider whether Rodriguez’s evidence was
material and not reasonably available to her at the time of the
final filing deadline.
     The panel held that the BIA also abused its discretion in
failing to properly evaluate whether Rodriguez had
established good cause for missing the filing deadline. First,
the panel held that a good-cause standard governs the BIA’s
denial of a motion to remand to apply for asylum. The panel
noted that traditionally the BIA would grant a motion to
reopen or remand to apply for discretionary relief only if the
noncitizen either: (1) was not afforded the right to apply for
that relief at her former hearing, or (2) is seeking that relief
based on circumstances that arose after the
hearing. However, in Matter of R-C-R-, 

(BIA 2020), the BIA recognized a good-cause exception to
these limitations. Concluding that Matter of R-C-R-’s good-
cause standard was consistent with principles of fairness and
immigration judge discretion, the panel accorded it Skidmore
deference.
    Next, the panel concluded that the BIA’s conclusory
one-sentence dismissal of Rodriguez’s personal
circumstances as not amounting to good cause, with no
further explanation, was insufficient. Because the BIA did
4              ALCAREZ-RODRIGUEZ V. GARLAND


not articulate the proper framework for determining whether
she had good cause for missing the filing deadline, the panel
remanded for the BIA to consider that issue in the first
instance.
    Concurring in the judgment, Judge Forrest agreed with
the majority that this case must be remanded for the BIA to
resolve Rodriguez’s request to reopen under the proper legal
standard, but she disagreed, in part, with the majority’s view
of that standard. In Judge Forrest’s view there is no basis for
applying a good-cause exception to excuse a petitioner’s
failure to timely file an application for discretionary relief,
including asylum, in the context of reopening removal
proceedings. Judge Forrest would remand for the BIA to
consider whether Rodriguez’s request satisfies the
governing regulatory requirements.


                         COUNSEL

Mariana L. Hanna (argued), Law Offices of Mariana L.
Hanna, San Diego, California, for Petitioner.
Aaron Nelson (argued) and Sarah L. Martin, Trial Attorneys;
Corey L. Farrell; Gregory D. Mack, Senior Litigation
Counsel; Brian M. Boynton, Principal Deputy Assistant
Attorney General; United States Department of Justice, Civil
Division, Office of Immigration Litigation, Washington,
D.C.; for Respondent.
               ALCAREZ-RODRIGUEZ V. GARLAND               5


                        OPINION

GILMAN, Circuit Judge:

    Ashley Rodriguez, a native and citizen of Mexico,
petitions for review of the Board of Immigration Appeals’s
(BIA’s) decision and order denying her motion to remand
her removal proceedings to the Immigration Judge (IJ) for
the consideration of her application for asylum, withholding
of removal, and protection under the Convention Against
Torture (CAT). Because the BIA did not adequately
consider Rodriguez’s arguments in support of her motion to
remand, we GRANT the petition for review and REMAND
the case to the agency to properly consider the merits of
Rodriguez’s motion.
                  I.   BACKGROUND
    On October 17, 2014, the Department of Homeland
Security (DHS) served Rodriguez with a putative Notice to
Appear (NTA) that did not specify the date or time of any
subsequent removal hearings. The NTA alleged that
Rodriguez (1) was not a citizen or national of the United
States, (2) was a native and citizen of Mexico, (3) had
entered the United States near Otay Mesa, California, on
approximately September 27, 2010, and (4) had not been
admitted or paroled after inspection by an immigration
officer. Rodriguez was also charged as removable under 

(a)(6)(A)(i) for being present in the United
States without inspection or parole. DHS did not file the
NTA with the immigration court until March 13, 2015,
approximately five months after the NTA was served on
Rodriguez.
6              ALCAREZ-RODRIGUEZ V. GARLAND


    On March 27, 2015, the immigration court issued a
notice stating that Rodriguez’s first master calendar hearing
was to take place two months later, on June 9, 2015.
Rodriguez appeared at the hearing and, through counsel,
admitted the first two factual allegations stated in the NTA.
She denied, however, the remaining allegations and
contested the removability charge.
    Because Rodriguez’s removability had not yet been
established, and because DHS has the burden on this issue,
the IJ rightly determined that “[a]ny request for asylum
seems premature.” The IJ then scheduled another master
calendar hearing for eight months later, on February 3, 2016,
and gave Rodriguez a deadline of November 3, 2015 to
submit a written change to her initial pleading if she wished
to do so. Rodriguez complied with the IJ’s directions and,
on November 3, 2015, she filed an amended pleading in
which she conceded her removability.
   At the February 3, 2016 hearing, the IJ scheduled yet
another master calendar hearing for sixth months later, on
August 17, 2016. Rodriguez’s application for asylum,
withholding of removal, and CAT protection was to be filed
with the immigration court at that hearing.
    But the August 2016 hearing never materialized. On
July 8, 2016, the immigration court sua sponte rescheduled
the hearing for March 1, 2017. The immigration court sua
sponte rescheduled the hearing yet again on November 28,
2016, this time for May 24, 2017. And on May 4, 2017—
three weeks before the already twice-rescheduled hearing
was to take place—the immigration court sua sponte
rescheduled Rodriguez’s proceedings a third time, for
December 13, 2017.
               ALCAREZ-RODRIGUEZ V. GARLAND                7


    At the December 13, 2017 hearing, the IJ asked
Rodriguez’s counsel whether counsel had prepared an
application for relief. Counsel responded by requesting
additional time to review Rodriguez’s medical records. The
IJ agreed to provide more time and also scheduled a hearing
on the merits of Rodriguez’s forthcoming applications for
relief for November 6, 2018. Because Rodriguez’s merits
hearing would not take place for another 11 months, the
deadline for her application for relief was set for September
6, 2018. The IJ told Rodriguez that if the application was
not submitted by that date, Rodriguez “r[a]n the risk” of her
application being denied.
    On September 5, 2018, Rodriguez’s counsel filed a
motion to extend the filing deadline by 15 days because
counsel had been having difficulty reaching Rodriguez. The
IJ did not act on the motion until October 4, when he
simultaneously denied the extension, vacated the November
6, 2018 hearing, and ordered Rodriguez’s removal.
    Rodriguez filed a motion to reopen with the immigration
court on October 30, 2018. The motion set forth the reasons
for Rodriguez’s delay in filing her application and included
supporting documentation. Rodriguez concurrently filed her
completed application for humanitarian relief in the form of
asylum, withholding of removal, and CAT protection, along
with supporting evidence.
    In addition to her motion to reopen with the immigration
court, Rodriguez filed a notice of appeal with the BIA on
November 2, 2018. She appealed based on the IJ’s “err[or]
in determining that [Rodriguez] had abandoned her relief
applications for failure to timely file.”
   The BIA acknowledged receipt of Rodriguez’s notice of
appeal on November 9, 2018. It subsequently assumed
8              ALCAREZ-RODRIGUEZ V. GARLAND


jurisdiction over her motion to reopen. In response,
Rodriguez filed an amended motion to remand (improperly
styled as a motion to reopen) on December 26, 2018.
    According to the motion, Rodriguez learned in 2015 that
she had contracted HIV from her physically abusive former
partner. She left that partner in approximately November
2017, just before the master calendar hearing during which
the IJ set the September 2018 deadline for the filing of
Rodriguez’s application for relief.       Because of her
immigration status, Rodriguez was not authorized to work in
the United States and was thus financially dependent on her
partner.
    Rodriguez became homeless without her partner’s
support, and her phone was eventually disconnected. She
therefore received no communication from her attorney until
September 5, 2018, when her ex-partner’s mother hand-
delivered a letter that had been sent to Rodriguez’s former
residence. During this time, moreover, Rodriguez was
unable to access medical documents and criminal records
relevant to her asylum application because she lacked funds
to pay the storage facility where those documents were kept.
    The motion also detailed Rodriguez’s health challenges.
Rodriguez was severely depressed and suffered from
suicidal ideations. She was also immunocompromised
because of her HIV and had gone to the emergency room
three times in September 2018, the very month when her
relief application had been due.
    Finally, Rodriguez’s motion included her application for
asylum, withholding of removal, and CAT protection, along
with supporting evidence that she contended would
demonstrate her prima facie eligibility for relief. Rodriguez
               ALCAREZ-RODRIGUEZ V. GARLAND                  9


requested in the alternative that the BIA exercise its
discretion to remand her proceedings sua sponte.
   The BIA did not issue a briefing schedule for
Rodriguez’s appeal until September 16, 2020, nearly two
years after Rodriguez filed her motion to remand. Nine
months later, on June 17, 2021, the BIA denied Rodriguez’s
motion and dismissed her appeal. In so doing, however, the
BIA did no more than cursorily consider the merits of the
motion to remand.
    Rodriguez timely petitioned for review before this court
on July 16, 2021. She does not, contrary to the government’s
assertions, argue that the IJ erred in initially deeming her
application abandoned, or that the IJ abused his discretion
when he refused to extend her September 2018 filing
deadline. Similarly, Rodriguez does not seek review of the
BIA’s refusal to exercise its sua sponte authority to grant her
motion to remand. And she nowhere requests us to
adjudicate a request for humanitarian asylum, a specific
form of relief from removal whose requirements are set forth
in 

(b)(1)(iii) (2023).
    Rodriguez instead simply requests us to remand her case
to the BIA so that it might properly consider her motion to
remand. The motion was filed on the basis of (1) newly
available evidence that established her prima facie eligibility
for the relief sought, and (2) good cause for missing the IJ’s
September 6, 2018 filing deadline.
                      II. ANALYSIS
   Rodriguez’s amended motion to reopen, filed with the
BIA on December 26, 2018, is properly characterized as a
motion to remand proceedings to the IJ. See Rodriguez v.
INS, 

 (9th Cir. 1987) (noting that where an
10             ALCAREZ-RODRIGUEZ V. GARLAND


appeal is pending and the BIA has not yet issued a decision,
a motion to reopen before the BIA should be treated as a
motion to remand). However, “[t]he formal requirements of
the motion to reopen and those of the motion to remand are
for all practical purposes the same.” 

A.   Standard of review
    We review the BIA’s denial of a motion to remand using
the abuse-of-discretion standard. Malhi v. INS, 

 (9th Cir. 2003). The BIA abuses its discretion
when it “act[s] arbitrarily, irrationally, or contrary to law.”
Mohammed v. Gonzales, 

 (9th Cir. 2005).
Such abuse includes “when it fails to offer a reasoned
explanation for its decision, [or when it] distorts or
disregards important aspects” of the claim. Malhi, 

 (quoting Konstantinova v. INS, 

 (9th
Cir. 1999)).
B.   The BIA abused its discretion by failing to address
     Rodriguez’s arguments that she could establish
     prima facie eligibility for withholding of removal
     and CAT protection with evidence that was
     unavailable at the time of her filing deadline
    A motion to reopen or to remand for the purpose of
applying for nondiscretionary relief, such as for withholding
of removal and CAT protection, has three regulatory
requirements. The motion must (1) “state the new facts that
will be proven at a hearing to be held if the motion is
granted,” (2) “be accompanied by the appropriate
application for relief and all supporting documentation,” and
(3) proffer evidence that “is material and was not available
and could not have been discovered or presented at the
former hearing.” 

(c)(1) (2023). A
noncitizen seeking reopening or remand “need only establish
               ALCAREZ-RODRIGUEZ V. GARLAND                11


a prima facie case for relief, and need not conclusively
establish that [she] warrants relief.” Salim v. Lynch, 

 (9th Cir. 2016) (cleaned up).
    Although the regulation references a “former hearing,” a
noncitizen may move to reopen or to remand for the purpose
of submitting an application for relief even if the IJ did not
previously hold a merits hearing on that claim. See Reyes-
Corado v. Garland, 

 (9th Cir. 2023)
(collecting cases) (noting that this court “ha[s] long read 

(c)(1) to contemplate two kinds of motions
to reopen: those raising changed circumstances affecting a
previously raised claim, and those ‘for the purpose of
submitting an application for relief’”); see also Silva v.
Garland, 

 (9th Cir. 2021) (“Although [the
respondent] did not seek relief from removal at his initial
hearing, an alien may move to reopen proceedings for the
purpose of submitting new applications for relief.”)
(emphasis added).
    The second kind of motion to reopen (or to remand) is
applicable here, and such a motion does not require a
“former hearing” because an IJ could not have held such a
hearing on an application for relief that had not yet been
submitted.     Therefore, with regard to Rodriguez’s
withholding and CAT claims, her motion to remand was
required only to (1) state the new facts to be proven at a
merits hearing, (2) include the appropriate application and
supporting documentation, and (3) proffer evidence that was
“material and was not available and could not have been
discovered or presented” at the time of her application
deadline. See 

(c)(1).
    The government does not dispute that Rodriguez
satisfied the first two requirements. As to the third,
12              ALCAREZ-RODRIGUEZ V. GARLAND


Rodriguez explained in her motion that evidence related to
her criminal history and medical conditions was quite
literally unavailable to her during the relevant period
because she was homeless and did not have access to her
personal documents. Both categories of evidence are highly
relevant to her relief application. See Form I-589, Part C,
Question 6 (“Attach documents referring to [criminal]
incidents, if they are available, or an explanation of why
documents are not available.”); Boer-Sedano v. Gonzales,

, 1090–91 (9th Cir. 2005) (commenting on
Mexico’s hostility toward persons with HIV/AIDS and
holding that the INS had failed to show the reasonableness
of internal relocation in light of, among other factors, the
petitioner’s diagnosis). As this court has previously held,
“[i]t is not sufficient that the evidence physically existed in
the world at large; rather, the evidence must have been
reasonably available to the petitioner.” Oyeniran v. Holder,

 (9th Cir. 2012).
    Rodriguez also argued that her evidentiary submission
demonstrated her prima facie eligibility for the relief that she
sought because of her status as an HIV-positive transgender
woman and rape survivor—a conclusion that, in light of this
court’s caselaw, appears eminently reasonable. See, e.g.,
Avendano-Hernandez v. Lynch, 

, 1081–82
(9th Cir. 2015) (concluding that the record compelled a
finding that the petitioner was more likely than not to be
tortured in Mexico on account of her identity as a
transgender woman); De La Luz Ramos v. Garland, 

, 148–49 (9th Cir. 2021) (same).
    Yet the BIA’s decision is devoid of any evaluation of
whether Rodriguez’s evidence in support of her application
for asylum and related relief was material and not reasonably
available to her at the time of the September 6, 2018 filing
                ALCAREZ-RODRIGUEZ V. GARLAND                 13


deadline. The BIA’s acknowledgement of Rodriguez’s
personal circumstances is hardly a substitute for its failure to
evaluate her legal arguments relating to those circumstances.
And, as we have emphasized before, the IJ’s or the BIA’s
“failure to address [an] argument” requires us to “remand for
additional investigation or explanation.”              Muradin
v. Gonzales, 

 (9th Cir. 2007); see also
Barroso v. Gonzales, 

 (9th Cir. 2005)
(“In failing to address this separate ground for relief, the BIA
abused its discretion.”).
    For the benefit of the BIA on remand, we offer a final
point. Our precedent requires only that the evidence was not
“reasonably available to the petitioner,” Oyeniran v. Holder,

 (9th Cir. 2012), and the availability of
evidence at some point prior to a petitioner’s filing deadline
does not mean that such evidence is forever available to the
petitioner for purposes of a motion to reopen or remand.
    Rodriguez was in the process of gathering evidence
when she fled her abusive partner and was no longer able to
access the documents that she had already collected. That
evidence became unavailable once she became homeless,
destitute, and unable to contact her attorney. Moreover, we
see no reason to penalize Rodriguez for failing to meet a
December 2017 deadline that the IJ vacated and extended to
September 2018, particularly because neither party has
asked us to do so. The BIA should therefore decide on
remand whether any evidence that Rodriguez might have
been able to access years earlier but that became unavailable
more than ten months before the September 2018 filing
deadline was still “reasonably available” to her as the
deadline approached. See Oyeniran, 

.
14             ALCAREZ-RODRIGUEZ V. GARLAND


C.   The BIA abused its discretion in failing to properly
     evaluate whether Rodriguez had established good
     cause for missing the filing deadline imposed by the
     IJ
 1. A good-cause standard governs the BIA’s
    denial of a motion to remand when the
    noncitizen seeks to apply for asylum
    Asylum, unlike withholding of removal and CAT
protection, is a discretionary form of relief. 

(a) (2023). The BIA has traditionally granted a
motion to reopen or remand “for the purpose of affording the
[noncitizen] an opportunity to apply for any form of
discretionary relief” only if the noncitizen either (1) was not
afforded the right to apply for the discretionary relief at her
former hearing, or (2) is seeking the discretionary relief “on
the basis of circumstances that have arisen subsequent to the
hearing.”     

(c)(1) (2023); 

(b)(3) (2023). More recently, however, the BIA
has recognized that “reconsideration or reopening by the
Immigration Judge” would likely also be appropriate where
the noncitizen has satisfied the additional requirement of
“provid[ing] good cause for missing the deadline.” See
Matter of R-C-R-, 

, 78–79 (BIA 2020).
    The concurrence believes that this statement in Matter
of R-C-R- is dicta, Concurring Op. at 30, but we conclude
otherwise. True enough, “‘[t]he line is not always easy to
draw’ when deciding whether language in an agency
adjudication is a binding rule or unnecessary dictum.” Route
v. Garland, 

 (9th Cir. 2021). But because
the BIA “confront[ed] an issue germane to the eventual
resolution of the case” and “resolve[d] it after reasoned
consideration” when it concluded that a good-cause
                ALCAREZ-RODRIGUEZ V. GARLAND                 15


exception can apply to missed deadlines, see 

 this holding
from Matter of R-C-R- is eligible for deference under
Skidmore v. Swift & Co., 

 (1944). See
Orellana v. Barr, 

, 934–36 (9th Cir. 2020)
(deferring to the BIA’s interpretation under Skidmore even
though “[t]he BIA’s analysis [] was not extensive”).
    One of the main questions before the BIA in Matter of
R-C-R- was whether the IJ erred in deeming an application
for relief from removal waived because it was submitted
after the deadline. 28 I. & N. Dec. at 77–78. In affirming
the IJ’s refusal to accept the noncitizen’s late application,
the BIA explained that the authority to do so is not without
limits. It then expressly recognized that IJs should accept
late applications when the noncitizen files either (1) a
motion to extend the application deadline that “explained
[the petitioner]’s failure to comply with the . . . deadline or
identified any difficulties he may have encountered that
prevented his compliance” and “established good cause for
extending the application deadline,” or (2) a motion to
reopen or to reconsider that “[included] a completed
application with an explanation for his untimely filing” and
“provided good cause for missing the deadline.” Id. at 78.
This reasoned consideration of the contours of the IJ’s
authority to accept late applications was “germane to the
eventual resolution” of the issue, Route, 

,
because the BIA could not have determined that neither
situation applied to the noncitizen in Matter of R-C-R-
without first explaining what those situations entailed.
    The concurrence nevertheless argues that there is no
good-cause exception because the motion-to-reopen
regulations do not explicitly identify one. Concurring Op.
at 30. But the BIA did not conclude that a motion to reopen
or to remand was an improper vehicle to argue that a
16              ALCAREZ-RODRIGUEZ V. GARLAND


petitioner had good cause for missing a filing deadline.
Rather, it concluded only that Rodriguez’s homelessness
and inability to access her documents “[did] not amount to
good cause for an extension of the filing deadline or a
continuance,” with no further explanation given. And as this
court has stated before, we “cannot affirm the BIA on a
ground upon which it did not rely.” Arredondo v. Holder,

 (9th Cir. 2010) (cleaned up).
    Furthermore, as the Second Circuit has recognized,
“both the IJ and district judge have the ‘inherent discretion
to depart from the letter of the Local Rules’ in certain
circumstances where ‘fairness demands that noncompliance
be excused.’” Dedji v. Mukasey, 

 (2d Cir.
2008) (citation omitted). The Second Circuit then held that
even if the local rules issued pursuant to a regulation “do not
explicitly identify a good-cause exception[,]” the IJ errs in
“fail[ing] to consider whether, in the particular
circumstances presented, a departure from [the local rule]
was warranted” where the noncitizen “has demonstrated
good cause for the failure to timely file documents and a
likelihood of substantial prejudice from enforcement of the
deadline.” 

    Matter of R-C-R-’s good-cause standard is fully
consistent with the principle articulated by our sister circuits
that “it is a matter of concern when an IJ’s strict adherence
to the established time limit prevents a petitioner from
presenting his case.” 

 (citing Galicia v. Gonzales, 

 (7th Cir. 2005)). We therefore find Matter of
R-C-R- “persuasive in its own right,” see Christopher v.
SmithKline Beecham Corp., 

 (2012), so
we will accord it Skidmore deference. See Garcia v. Holder,

, 1266–67 (9th Cir. 2011) (“Pursuant to
Skidmore, a reviewing court may properly resort to an
               ALCAREZ-RODRIGUEZ V. GARLAND                17


agency’s interpretations and opinions for guidance, as they
constitute a body of experience and informed judgment.”)
(cleaned up) (quoting Skidmore, 

); Kisor v.
Wilkie, 

 (2019) (noting that when Auer
deference does not apply, courts may defer under Skidmore).
     Indeed, this circuit and others have previously employed
the good-cause standard as a check against arbitrary and
capricious decisionmaking by IJs with respect to the similar
question of extending filing deadlines (as compared to
considering an application for relief submitted after the
filing deadline) even though the regulation governing
extensions, 

(h) (2023), also does not
explicitly identify a good-cause exception. See, e.g., Segura
v. Lynch, 

 (9th Cir. 2016); Hassan v.
Gonzales, 

 (6th Cir. 2005); Moreta v.
Holder, 

 (1st Cir. 2013); Velazquez-Dias
v. Holder, 

 (5th Cir. 2013).
    In sum, noncitizens in removal proceedings must be
afforded the fundamental fairness that is guaranteed by the
Fifth Amendment. Ibarra-Flores v. Gonzales, 

 (9th Cir. 2006). We thus find eminently reasonable
the BIA’s waiver of the general prohibition against
considering discretionary applications where (1) the
application is for relief based on credible fears of
persecution, and (2) the noncitizen has established good
cause for failing to timely file.
 2. The BIA abused its discretion by failing to
    conduct a reasoned good-cause analysis
    “We have long held that the BIA abuses its discretion
when it fails to provide a reasoned explanation for its
actions.” Movsisian v. Ashcroft, 

 (9th
Cir. 2005). When it “fails to provide specific and cogent
18              ALCAREZ-RODRIGUEZ V. GARLAND


reasons for its decision, we are left without a reasoned
decision to review.” 

    In the present case, the BIA concluded that, “[w]hile
[Rodriguez]’s personal circumstances are sympathetic, they
do not amount to good cause for an extension of the filing
deadline or a continuance of proceedings.” It then cited
several cases for the proposition that an IJ does not have an
obligation to consider an application after a deadline has
passed and good cause has not been shown. But those cases
do not support the BIA’s conclusion with respect to
Rodriguez’s motion because the key question is whether
good cause actually existed in this case.
    Similarly, the BIA observed that Rodriguez “had more
than two and a half years to complete her application and
failed to do so.” Yet that, too, is not in controversy—
Rodriguez does not dispute that she did not comply with the
IJ’s deadline, nor that the IJ properly exercised his discretion
in denying her motion for an extension. The BIA was
instead required to assess whether Rodriguez had established
good cause, after the fact, for not meeting the IJ’s deadline.
Its one-sentence dismissal of Rodriguez’s personal
circumstances as “not amount[ing] to good cause[,]” with no
further explanation, is a textbook example of a conclusory
statement that “falls short of setting out terms sufficient to
enable us as a reviewing court to see that the Board has
heard, considered, and decided” the issue.               Kalubi
v. Ashcroft, 

 (9th Cir. 2004) (cleaned
up).
    “Absent an explanation from the [BIA], we have no
choice but to conclude that the denial of the [motion] was
arbitrary and unreasonable.” Ahmed v. Holder, 

 (9th Cir. 2009). We therefore hold that the BIA
               ALCAREZ-RODRIGUEZ V. GARLAND               19


abused its discretion in concluding, without any explanation,
that Rodriguez had not established good cause for missing
the September 2018 filing deadline for her asylum
application.
D.   On remand, the BIA should determine the
     applicable good-cause standard
    The BIA did not articulate the proper framework for
determining whether Rodriguez had good cause for missing
the filing deadline. We therefore remand for it to consider
this issue in the first instance.
    “[U]nder the ordinary remand rule, the agency should be
given an opportunity in the first instance to make legal
determinations entrusted to it by Congress.” Perdomo v.
Holder, 

 (9th Cir. 2010). Although “it may
be appropriate for us to address the merits of purely legal
claims over which the BIA claims no particular expertise and
as to which we would not ‘intrude upon [a] domain which
Congress has exclusively entrusted to an administrative
agency[,]’” Ray v. Gonzales, 

 (9th Cir.
2006) (cleaned up), that is not the case here.
     The Supreme Court has held that, “[g]enerally speaking,
a court of appeals should remand a case to an agency for
decision of a matter that statutes place primarily in agency
hands.” INS v. Ventura, 

, 16–17 (2002) (per
curiam). This court has accordingly remanded to the BIA
when the issue “involve[d] close examination of the BIA’s
own appeals process.” Ray, 

; see also
Ventura, 

 (reversing this court’s refusal to
remand an asylum claim to the BIA for consideration in the
first instance of changed country conditions).
20             ALCAREZ-RODRIGUEZ V. GARLAND


    The same logic applies to the immigration court’s
deadline-management process. We will therefore remand to
the BIA for it to articulate the factors that determine whether
good cause exists to extend a filing deadline. In doing so,
we note that a good-cause framework as articulated in
Ahmed v. Holder, 

 (9th Cir. 2009), governs the
analogous question of whether good cause exists to grant a
continuance. The crux of the issue in both cases is whether
removal proceedings should be extended so as to ensure that
those proceedings remain fundamentally fair to a petitioner
who demonstrates diligence. We therefore suggest that the
BIA consider whether a similar analysis should apply to
extending filing deadlines.
                   III. CONCLUSION
    For all the reasons set forth above, we GRANT the
petition for review and REMAND the case to the agency to
properly consider the merits of Rodriguez’s motion to
remand.
               ALCAREZ-RODRIGUEZ V. GARLAND                21


FORREST, Circuit Judge, concurring in the judgment:

    Petitioner Ashley Rodriguez did not apply for asylum or
any other relief from removal by the deadline set by the
immigration judge, and the immigration judge denied
Rodriguez’s motion for a further extension of the filing
deadline and deemed her application abandoned. Thereafter,
Rodriguez appealed the denial of her motion for an extension
and moved to reopen her proceedings before the immigration
judge so she could file her otherwise untimely application
for relief. The Board of Immigration Appeals (BIA) affirmed
the immigration judge, concluding that Rodriguez failed to
establish good cause for not meeting her filing deadline or
for reopening her proceedings. The BIA did not otherwise
address the requirements governing motions to reopen
removal proceedings. I agree with the majority that this case
must be remanded for the BIA to resolve Rodriguez’s
request to reopen under the proper legal standard. I disagree
in part, however, with the majority’s view of the governing
legal standard. Specifically, there is no basis for applying a
good-cause exception to excuse a petitioner’s failure to
timely file an application for discretionary relief, including
asylum, in the context of reopening removal proceedings.
                   I.   BACKGROUND
    Rodriguez is a transgender woman and a citizen of
Mexico. She most recently entered the United States in mid-
2010. Four years later, the Department of Homeland
Security charged her as inadmissible under 

(a)(6)(A)(i) because she was present in the United
States without having been admitted or paroled.
   Rodriguez was represented by counsel throughout her
immigration proceedings, and she appeared in immigration
22             ALCAREZ-RODRIGUEZ V. GARLAND


court three times. Her first appearance was in June 2015, and
she contested her removability. But a few months later, she
changed her plea, conceded that she was removable, and
indicated that she would apply for relief from removal.
    Rodriguez next appeared in immigration court in
February 2016. The immigration judge informed her that she
needed to file any application for relief and supporting
documents by her next hearing date in August 2016.
Rodriguez’s counsel confirmed receiving this deadline.
Rodriguez was also given written notice that failing to file a
timely application “will result in the conclusion that such
applications are abandoned.” Ultimately, the immigration
court sua sponte continued Rodriguez’s hearing to
December 2017, and Rodriguez did not file her application
by the initial August 2016 deadline.
    Rodriguez’s final appearance before the immigration
judge was on December 13, 2017. At that hearing, she
reiterated her intention to apply for relief from removal but
said she needed more time to complete an application. The
immigration judge then set a new application deadline for
September 6, 2018, with a merits hearing to follow in
November of that year. The immigration judge addressed
Rodriguez directly, stating: “[P]lease bear in mind that if the
Court does not receive all of the necessary documents by
September 6th, 2018, you run the risk of your Application
being denied simply for failure to meet all of the
requirements. So pay attention to that date.” The parties also
received written notice confirming the application deadline,
which stated: “All relief applications and documents in
support thereof . . . must be filed no later than 9-6-2018, or
by such date as may be extended by the Immigration Judge.
Failure to timely file the aforementioned documents will
               ALCAREZ-RODRIGUEZ V. GARLAND                 23


result in the conclusion that such applications are
abandoned.”
     Nine months passed. The day before Rodriguez’s filing
deadline, her counsel moved for a 15-day extension. The
sole reason she gave for the motion was that she “had
difficulty reaching [Rodriguez] to finalize the relief
applications and require[d] additional time to do so.” The
immigration judge denied this motion a month later,
concluding that counsel’s difficulty in reaching her client did
not constitute good cause for an extension. The immigration
judge further noted that Rodriguez had been given “many
months to prepare and perfect a timely filing” and that “four
weeks have now passed beyond the deadline without any
filing.” And consistent with the prior oral and written
cautions that were provided, the immigration judge deemed
any application that Rodriguez intended to file abandoned
and ordered her removed to Mexico.
    Rodriguez did two things in response. First, in late
October 2018, she filed a motion to reopen her proceedings
with the immigration judge, arguing that she had “good
cause” for her motions and asking that she be “afforded a full
and fair hearing on her applications for relief.” In support of
her motion, she filed a declaration explaining why she did
not file a timely application. She stated that she was
diagnosed with HIV in 2015, and that she was in an abusive
relationship from 2014 through November 2017. She was
financially dependent on her partner because of her
immigration status, and when she left that relationship, she
became homeless and had depression. She could not get to
her attorney’s office because she could not pay for
transportation, and documents that she needed for her
application were in storage that she could not access because
she could not pay her storage bill. She also presented
24                ALCAREZ-RODRIGUEZ V. GARLAND


supporting evidence from her psychiatrist, a homeless
shelter, her social services case worker, and her medical
records confirming she had multiple emergency room visits
in September 2018.
    With her motion, she submitted a completed application
for asylum, withholding of removal, and protection under the
Convention Against Torture (CAT), as well as an additional
declaration stating that was raped and harassed in Mexico
because of her gender identity and that she would not be able
to afford her necessary medications and medical treatment
in Mexico. She also submitted country-conditions and
human-rights reports detailing the treatment of transgender
persons in Mexico.
    Second, in early November 2018, after filing her motion
to reopen with the immigration judge, Rodriguez appealed
the immigration judge’s removal order to the BIA. In her
Notice of Appeal, she argued that she had not abandoned her
application because she moved for an extension before the
deadline passed, and her motion was not timely decided.
Because Rodriguez filed an appeal while her motion to
reopen was pending with the immigration judge, jurisdiction
over her motion transferred to the BIA. Less than two
months later, Rodriguez filed a duplicate motion to reopen
with the BIA. 1



1
  Although Rodriguez styled her motion filed with the BIA as a motion
to reopen, it is properly viewed as a motion to remand because it was
filed while her appeal was pending. See Rodriguez v. INS, 

 (9th Cir. 1987). Therefore, I refer to her second motion to reopen as
a motion to remand. But the nomenclature makes little difference
because “[t]he formal requirements of the motion to reopen and those of
the motion to remand are for all practical purposes the same.” 

               ALCAREZ-RODRIGUEZ V. GARLAND                25


    The BIA set October 7, 2020, as the deadline for
Rodriguez to file her appellate brief. The day after this
deadline passed, the BIA received a motion for extension of
time from Rodriguez’s counsel, stating more time was
needed because of “ongoing medical issues which have
required several doctors’ appointments.” The BIA denied
this motion as untimely. A few weeks later, Rodriguez asked
the BIA to “accept her Motion to Reopen, filed with the
Board on December 26, 2018, in place of her appellate
brief,” which would mean that she filed a timely appellate
brief. The BIA granted this request and treated Rodriguez’s
motion as her appellate brief.
     Ultimately, the BIA denied Rodriguez’s motion to
remand and affirmed the immigration judge. In doing so, the
BIA expressly recognized Rodriguez’s argument for why
she was entitled to present her application for relief despite
missing her filing deadline—that “she was unable to
communicate with her attorney and provide . . .
corroborating evidence supporting her claim prior to the
filing deadline because she was a victim of domestic
violence, had contracted HIV, became homeless, and
required emergency medical attention . . . due to her
weakened immune system.” The immigration judge also
noted that she submitted documentation supporting her
explanation. But, acknowledging that Rodriguez’s personal
circumstances were sympathetic, it concluded that they did
“not amount to good cause for an extension of the filing
deadline or a continuance of proceedings” because she “had
more than two and a half years to complete her application
and failed to do so.” The BIA also declined to reopen
Rodriguez’s proceedings sua sponte.
    Rodriguez timely appealed, arguing that the BIA (1)
failed to properly analyze whether she was entitled to reopen
26             ALCAREZ-RODRIGUEZ V. GARLAND


her proceedings before the immigration judge for the
purpose of filing an application for relief based on newly
available evidence, and (2) abused its discretion in
concluding that she lacked good cause for missing her
September 2018 application.
                    II. DISCUSSION
                  A. Motion to Remand
                              1.
    Rodriguez suggests that the BIA addressed only her
appeal challenging the denial of her last-minute motion for
an extension of the application deadline and failed to
consider her motion to remand. We review de novo whether
the agency properly considered a petitioner’s motion to
remand. Narayan v. Ashcroft, 

 (9th Cir.
2004). “A motion to remand may be considered a part of the
appeal to the BIA . . . when the motion concerns the remedy
requested by the appeal.” 

 Thus, we look to the “remedy
requested”—what the motion to remand asks the BIA to
do—in determining whether it must be addressed separately
from the merits of the appeal. 

     Here, Rodriguez’s motion to remand seeks the same
remedy requested in her appeal: a remand for the
immigration judge to decide her application for relief on the
merits. Her motion asked the BIA to “reopen removal
proceedings and remand the record to the Immigration Judge
. . . to adjudicate [her] relief applications,” and her appeal
requested reversal of the immigration judge’s determination
that her application was abandoned so that it could be
considered on the merits. Perhaps the clearest evidence that
Rodriguez’s motion “concerns the remedy requested by the
appeal,” 

 is that she asked the BIA to treat her motion to
               ALCAREZ-RODRIGUEZ V. GARLAND               27


remand as her appellate brief. On this record, the BIA was
not required to separately “address and rule upon [the]
remand motion[].” 

 Thus, I conclude that the BIA did
consider Rodriguez’s motion to remand and not just the
merits of her appeal.
                             2.
     The BIA’s denial of a motion to remand is reviewed for
abuse of discretion. See Taggar v. Holder, 

(9th Cir. 2013). A motion seeking to reopen proceedings to
apply for nondiscretionary relief from removal must state,
among other things, “the new facts that will be proven at a
hearing to be held if the motion is granted” and “be
supported by affidavits or other evidentiary material.” 8
U.S.C. § 1229a(c)(7)(B). Reopening is not permitted unless
the new evidence presented is “material” to the claim for
relief “and was not available and could not have been
discovered or presented” previously. 

(c)(1)
(emphasis added); see also 

(b)(3). That
is, as a matter of plain language, both materiality and prior
unavailability must be shown. 

(c)(1),
1003.23(b)(3).
    The regulations impose additional requirements where a
petitioner seeks to reopen to apply for discretionary relief,
including asylum. In that context, in addition to meeting the
requirements applicable to motions to reopen to seek
nondiscretionary relief, the motion to reopen must be
“sought on the basis of circumstances that have arisen
subsequent to the hearing,” assuming the petitioner was fully
informed of her right to apply for discretionary relief and
given an opportunity to do so at the prior hearing. 

    Rodriguez argues that the BIA did not apply the proper
legal standard in assessing her motion to remand because it
28             ALCAREZ-RODRIGUEZ V. GARLAND


failed to consider whether her newly presented evidence
satisfied the requirements for reopening and demonstrated
that she is prima facie eligible for relief. Rodriguez’s
argument is well taken, and I agree with the majority that a
remand is required so that the BIA can assess whether
Rodriguez’s new facts and evidence justify reopening her
removal proceedings under the governing regulations. I do
not join, however, the majority’s direction to the BIA
regarding how to conduct its analysis on remand. See Maj.
Op. at 13. And as explained below, I disagree that a good-
cause exception applies to the extent Rodriguez seeks to
reopen her removal proceedings to apply for asylum.
               B. Good-Cause Exception
    Immigration judges are authorized to “set and extend
time limits for the filing of applications and related
documents and responses thereto, if any.” 

(h). The regulations direct that “[i]f an application
or document is not filed within the time set by the
immigration judge, the opportunity to file that application or
document shall be deemed waived.” 

 Here, the
immigration judge denied Rodriguez’s last-minute motion
for an extension because the immigration judge concluded
her motion was not supported by good cause. The BIA
affirmed because Rodriguez “had more than two and a half
years to complete her application and failed to do so.” See
Taggar, 

 (“Neither the IJ nor the Board
abused their discretion in holding that [petitioner] had
waived her application for relief and protection” where she
“did not file her application for relief by . . . the extended
due date for her applications set by the IJ.”). In considering
good cause, the BIA made no distinction between
Rodriguez’s original motion to extend her filing deadline
and her subsequent requests to reopen her removal
               ALCAREZ-RODRIGUEZ V. GARLAND                 29


proceedings so she could file her otherwise untimely
application.
    The majority concludes that the agency erred by not
adequately “assess[ing] whether Rodriguez had established
good cause,” on appeal, for missing the immigration judge’s
deadline. Maj. Op. at 14–19. In reaching this conclusion, the
majority relies on a single BIA decision—Matter of R-C-R-,

 (BIA 2000)—that it concludes is
“persuasive in its own right.” 

 at 16 (quoting Christopher
v. SmithKline Beecham Corp., 

 (2012)).
The BIA also relied on Matter of R-C-R- in concluding that
Rodriguez failed to establish good cause warranting “a
continuance of proceedings.” I disagree that Matter of R-C-
R- has legal or persuasive force where there is no statutory
or regulatory basis for imposing a good-cause standard to
excuse an untimely application in the context of seeking to
reopen removal proceedings.
    Recognizing that petitioners are generally entitled to
reopen proceedings to apply for discretionary relief only
where their claim for relief is based on circumstances that
arose after the prior proceedings, the majority nonetheless
concludes that Matter of R-C-R- creates an exception
allowing a petitioner seeking discretionary relief to reopen
proceedings to file an untimely application—based on
evidence that was previously available—where the
petitioner “has satisfied the additional requirement of
‘provid[ing] good cause for missing the [application]
deadline.’” Id. at 14 (citation omitted). The majority further
concludes that waiver of the general limitations on motions
to reopen is “eminently reasonable” in this context. Id. at 17.
    In Matter of R-C-R-, the BIA stated that where the
petitioner’s application for relief was deemed waived after
30              ALCAREZ-RODRIGUEZ V. GARLAND


petitioner missed the filing deadline, reopening proceedings
or remanding to the immigration judge “would likely have
been appropriate” had the petitioner “provided good cause
for missing the deadline.” 28 I. & N. Dec. at 78. This was
dicta. After the immigration judge in that case deemed the
petitioner’s application abandoned because it was not timely
filed, the BIA noted that immigration judges have authority
to enforce their filing deadlines and that the petitioner was
told that his application would be deemed abandoned if it
was not timely filed. Id. at 77–78. The BIA nonetheless
discussed options a petitioner may have to avoid the
consequences of untimeliness, including requesting an
extension of the deadline before it runs and moving for
reconsideration or to reopen proceedings after the
application was deemed abandoned. Id. at 78. But in fact, the
petitioner had “made no attempt to file such a motion with a
completed application at any time after the deadline had
passed.” Id. at 79.
    There is no basis for concluding that Matter of R-C-R-
created a categorical good-faith exception permitting
reopening when an asylum petitioner shows good cause for
missing an application deadline. The purpose of a motion to
reopen is to present previously unavailable facts that are
material to the petitioner’s substantive claim for relief. See 8
U.S.C. § 1229a(c)(7)(B); 

(c)(1),
1003.23(b)(3); see also Meza-Vallejos v. Holder, 

 (9th Cir. 2012). Neither the statute nor the
regulations contemplate using these motions to avoid the
consequence of missing a filing deadline.
    The Supreme Court has instructed that an agency’s
reasonable interpretation of its own regulation controls
unless it is “plainly erroneous or inconsistent with the
regulation.” Auer v. Robbins, 

 (1997)
                   ALCAREZ-RODRIGUEZ V. GARLAND                           31


(citation omitted). 2 But “the possibility of deference” to an
agency’s interpretation arises “only if a regulation is
genuinely ambiguous.” Kisor v. Wilkie, 

 (2019). And courts “must exhaust all the
‘traditional tools’ of construction” before declaring a
regulation ambiguous. 

 at 2415 (quoting Chevron U.S.A.
Inc. v. Nat. Res. Def. Council, Inc., 

, 843 n.9
(1984)).
    Here, the Auer inquiry is straightforward. The
regulations unambiguously define the requirements for
reopening removal proceedings. Where a petitioner seeks to
reopen to apply for discretionary relief, absent specified
procedural irregularities, the petitioner’s claim for relief
must be based on “circumstances that have arisen subsequent
to the [prior proceedings].” 

(c)(1),
1003.23(b)(3). Indeed, the requirements for granting
reopening so that a petitioner can apply for discretionary
relief are more limited than they are for nondiscretionary
relief, where the petitioner need only demonstrate that her
new facts are material to her request for relief and were
previously unavailable. Although motions to reopen
originally were a judicial creation, they are now governed by
regulation. See Bonilla v. Lynch, 

 (9th Cir.
2016). As such, the language of the regulation prevails, and
there is no textual basis for concluding that motions to
reopen, as a general matter, are a proper mechanism for
overcoming a missed deadline, nor is there any basis for



2
  Given the terseness of the BIA’s decision, it is unclear if it specifically
considered whether a good-cause exception is consistent with the
regulatory requirements for reopening removal proceedings such that
Auer is triggered. For purposes of this analysis, I assume that it did.
32             ALCAREZ-RODRIGUEZ V. GARLAND


deferring to the BIA’s passing suggestion otherwise. Kisor,

.
    The majority bypasses the Auer analysis and asserts that
the BIA’s interpretation of the relevant regulations is
“persuasive in its own right” and is entitled to Skidmore
deference. Maj. Op. at 16. Skidmore is less deferential than
Auer and requires courts to “follow [the] agency’s [view]
only to the extent it is persuasive.” Gonzales v. Oregon, 

 (2006); see also Kisor, 

. In
concluding that the statement it relies on from Matter of R-
C-R- is persuasive, the majority reasons from cases
discussing good cause for extending filing deadlines outside
the context of a motion to remand or reopen. See Maj. Op.
at 16–17. It is true that we have summarily—in unpublished
decisions—referenced a good-cause standard when
assessing the agency’s denial of a filing extension. See, e.g.,
Cruz v. Garland, No. 17-70090, 

, at *1
(9th Cir. Aug. 23, 2022) (unpublished) (“The agency did not
abuse its discretion or violate due process by excluding
untimely-filed evidence for failure to show good cause.”);
Barraza v. Sessions, 

 (9th Cir. 2018)
(unpublished) (“The agency did not abuse its discretion in
denying Ponce Barraza’s request for an additional
continuance for lack of good cause, where he had been given
time for preparation but did not file an asylum application
prior to the IJ’s deadline.”); Segura v. Lynch, 

 (9th Cir. 2016) (unpublished) (“The IJ set a
reasonable filing deadline of two weeks before the merits
hearing. Avina did not demonstrate good cause for his failure
to meet this deadline.”). But these decisions do not establish
that a “good-cause standard governs the BIA’s denial of a
motion to remand when the noncitizen seeks to apply for
asylum,” which is what the majority does here. Maj. Op. at
                  ALCAREZ-RODRIGUEZ V. GARLAND                         33


14 (emphasis added). And the majority fails to identify any
examples from this or any other circuit 3 recognizing a good-
faith exception for missing a filing deadline as justification
for a motion to remand or reopen.
    Moreover, the BIA’s short discussion in Matter of R-C-
R-—much of which is dicta—is hardly the kind of reasoned
analysis that is “persuasive in its own right,” particularly
where it is untethered from the governing text. See Auer, 

. Granting deference to the BIA’s suggestion in
Matter of R-C-R- that a motion to reopen or remand may be
used to avoid the consequence of missing a filing deadline
would “permit the agency, under the guise of interpreting a
regulation, to create de facto a new regulation.” Kisor, 

 (citation omitted).
    In sum, there is no basis for adopting a good-faith
exception to allow petitioners seeking discretionary relief to
reopen their removal proceedings after they failed to meet
their application deadline. I would therefore remand for the
BIA to consider whether Rodriguez’s request to reopen her
proceedings before the immigration judge in order to apply
for asylum, withholding, and protection under CAT satisfies
the governing regulatory requirements.
    For these reasons, I respectfully concur in the judgment.




3
  The majority’s reliance on the Second Circuit’s opinion in Dedji v.
Mukasey, 

 (2d Cir. 2008), is misplaced. Unlike the present
case, Dedji did not concern a motion to remand or reopen. The issue was
whether the immigration court erred by failing to recognize that it had
the inherent authority to deviate from its own local rules. See 

(“The IJ failed to consider whether, in the particular circumstances
presented, a departure from the local rules was warranted.”).