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-, 28 I. & N. Dec. 74 (BIA 2020), the BIA recognized a good-cause exception to these limitations. Concluding that Matter of R-C-R-’s good- cause standard