Susie Eskilian, who immigrated to the U.S. from Soviet Armenia as an infant in 1978, was ordered removed in 2011 based on a grand theft conviction but remained in the country for seven years because Armenia wouldn't accept Soviet-era immigrants, making her effectively "stateless." When Armenia changed its policy in June 2018 and began accepting such individuals, Eskilian quickly obtained counsel, had her conviction vacated under California Penal Code ยง 1473.7, and moved to reopen her removal proceedings.
Judge Ronald Gould, writing for the panel, found that "for individuals who were born during the Soviet era or who are otherwise deemed 'stateless,' it is reasonable to expect that an individual will begin to take action to challenge removability only once that individual learns that they can be removed to a country." The court rejected the government's argument that Eskilian should have "reached out to an attorney every year" to check for legal changes while she remained stateless, calling such expectations "far beyond what is reasonable due diligence."
The BIA had denied Eskilian's second motion to reopen, finding she lacked diligence because she waited over two years after California's vacatur statute took effect in 2017 to pursue relief. An immigration judge had denied her first motion to reopen solely because her counsel failed to present evidence of due diligence, prompting Eskilian to file a second motion based on ineffective assistance of counsel.
The Ninth Circuit's decision establishes a new standard for evaluating diligence in stateless immigrant cases, potentially affecting other Soviet-era immigrants and similar situations where individuals face no immediate threat of removal. The case has been remanded to the BIA for further proceedings consistent with the court's opinion recognizing the unique circumstances of stateless individuals.