Luong v. Blanche

── Luong v. Blanche ── Court: Court of Appeals for the Ninth Circuit Date: June 08, 2026 Category: General NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUN 8 2026 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT CHANH HUY LUONG, No. 25-3651 Agency No. Petitioner, A027-762-178 v. MEMORANDUM* TODD BLANCHE, Acting Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Argued and Submitted May 22, 2026 Pasadena, California Before: LEE, BUMATAY, and SUNG, Circuit Judges. Concurrence by Judge BUMATAY. Chanh Huy Luong petitions for review of the Bureau of Immigration Appeals’ (“BIA’s”) decision affirming the Immigration Judge’s (“IJ’s”) denial of his motion to reopen. We have jurisdiction under 8 U.S.C. § 1252. “We review the denial of a motion to reopen for abuse of discretion.” Bent v. Garland, 115 F.4th 934, 939 (9th Cir. 2024). We grant the petition for review, and we remand to * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. the BIA for further proceedings consistent with this disposition. 1. The BIA declined to equitably toll the deadline for Luong’s motion to reopen because it concluded that Luong did not exercise the “necessary due diligence in pursuing post-conviction relief to warrant equitable tolling.” “A petitioner seeking equitable tolling bears the burden of establishing two elements: (1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way and prevented timely filing.” Id. at 941 (citation modified). However, while this appeal was pending, we decided Eskilian v. Bondi, 172 F.4th 682 (9th Cir. 2026). The petitioner in Eskilian was ordered removed due to a criminal conviction, but for many years, “there was no country to which [she] could be removed” because she was a former Soviet citizen who had become “stateless.” Id. at 685. But in 2018, the agency informed Eskilian that “Armenia had recently begun to accept individuals who were born in Soviet Armenia, and she was consequently subject to immediate removability.” Id. Eskilian then retained counsel and successfully moved to vacate her conviction under California Penal Code § 1473.7. Id. at 686. The BIA determined that Eskilian was not reasonably diligent because she waited more than two years after the passage of § 1473.7 to seek vacatur of her conviction. Id. at 687. We held that the BIA erred in measuring Eskilian’s diligence from the date of her removal order because, considering the difficulty and cost of obtaining legal representation, “it is 2 25-3651 unreasonable to expect a ‘stateless’ individual to take affirmative steps to challenge removability when they do not face an immediate threat of removability.” Id. at 688. We further held that “it is reasonable to expect that an individual” who was subject to a removal order but not removable “will begin to take action to challenge removability only once that individual learns that they can be removed to a country.” Id. Applying that standard, we concluded that Eskilian acted with reasonable diligence because she pursued postconviction relief under § 1473.7 soon after the agency notified her that she was at “immediate risk of removal,” even though that was almost two years after § 1473.7 went into effect. Id. Like Eskilian, Luong was subject to a removal or