NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS FEB 25 2025

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT HORTENSIA PETRACHE, No. 21-417

Agency No.

Petitioner, A200-231-921 v.

MEMORANDUM* PAMELA BONDI, Attorney General,

Respondent.

On Petition for Review of an Order of the

Board of Immigration Appeals

Submitted February 18, 2025** Before: SILVERMAN, WARDLAW, and DESAI, Circuit Judges.

Hortensia Petrache, a native and citizen of Romania, petitions pro se for review of the Board of Immigration Appeals’ (“BIA”) order summarily dismissing her appeal from an immigration judge’s decision denying her motion to reopen removal proceedings. We have jurisdiction under 8 U.S.C. § 1252. We grant the

*

This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.

**

The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). petition for review and remand.

While this petition was pending, the BIA overruled its longstanding position that the notice of appeal deadline in 8 C.F.R. § 1003.38(b) is jurisdictional and held that the deadline is subject to equitable tolling if a noncitizen establishes that they have been “pursuing their rights diligently” and that “some extraordinary circumstance prevented timely filing.” Matter of Morales-Morales, 28 I. & N. Dec. 714, 716-17 (BIA 2023). The BIA has not yet considered whether Petrache can establish that equitably tolling should apply. We therefore remand for the BIA to consider equitable tolling in the first instance. See INS v. Orlando Ventura, 537 U.S. 12, 16-18 (2002); see also Vasquez-Rodriguez v. Garland, 7 F.4th 888, 896 (9th Cir. 2021) (exhaustion not required where resort to the agency would be futile).

The motion for a stay of removal is granted. The stay of removal remains in place until the mandate issues.

Each party must bear its own costs for this petition for review.

PETITION FOR REVIEW GRANTED; REMANDED.

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