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    Macario Jesus BONILLA, Petitioner, v. Loretta E. LYNCH, Attorney General, Respondent.
    No. 12-73853
    United States Court of Appeals, Ninth Circuit.
    Argued and Submitted February 12, 2016 Pasadena, California
    Filed July 12, 2016
    Amended October 20, 2016

      Stacy Tolchin (argued), Law Offices , of Stacy Tolchin, Los Angeles, California, for Petitioner.
    Arie A. Anderson (argued), Trial Attorney; Emily Ann Radford, Assistant Director; Stuart F. Delery, Assistant Attorney General; United States Department of Justice, Civil Division, Office of Immigration Litigation, Washington, D.C.; for Respondent.
    Before: MARSHA S. BERZON and JOHN B. OWENS, Circuit Judges and ALGENON L. MARBLEY, District Judge.

       The Honorable Algenon L. Marbley, District Judge for the U.S. District Court for the Southern District of Ohio, sitting by designation.

   ORDER

The opinion filed on July 12, 2016, and reported at 828 F.3d 1052 is hereby amended. The superseding amended opinion will be filed concurrently with this order.

The Petition for Panel Rehearing is DENIED. No further petitions for rehearing or petitions for rehearing en banc will be entertained.

OPINION

BERZON, Circuit Judge:

Immigration law changes over time. New statutes are enacted; agency. interpretations change; new appellate and Supreme Court decisions issue. Our questions concern how those legal changes affect an individual ordered deported from the United States when, as it turns out, the law concerning the grounds for deportation, or for denial of relief from deportation, changes after the individual is ordered deported.

Here, Macario Jesus Bonilla, formerly a lawful permanent resident of the United States, was deported to El Salvador in 1996 following a misdemeanor firearms conviction. He later reentered the United States without inspection and, much later, filed a motion to reopen, his second, on the ground that his original lawyer did not properly advise him how to adjust his status after he married a United States citizen. The motion was untimely, but Bonilla argued he was -entitled to equitable tolling of the limitations period.

After the Supreme Court announced a change in law that placed in question the legality of the original deportation, Bonilla supplemented his motion to reopen. The supplement asked the Board of Immigration Appeals (“BIA” or “Board”) to exercise its sua sponte authority to reopen his deportation order to permit him to file for relief from deportation. The Board denied both Bonilla’s motion and his request for sua sponte reopening. Bonilla now petitions for review.

We conclude that Bonilla was not entitled to equitable tolling and so deny review as to the adjustment of status issue. But, in agreement with every circuit that has squarely addressed the issue, we hold that we have authority to review refusals to reopen sua sponte to the limited degree that the refusal was based on legal error. Because we conclude the Board’s decision in this case was based on a legally erroneous premise, we grant the petition for review, vacate the Board’s denial, and remand to the Board to exercise its broad discretionary authority as to sua sponte reopening against the correct legal backdrop.

I. BACKGROUND

Macario Jesus Bonilla is a native and citizen of El Salvador. He entered the United States in 1981 and became a lawful permanent resident in 1989.

In 1994, Bonilla was convicted of misdemeanor possession of a concealed firearm in a motor vehicle and placed in deportation proceedings. An Immigration Judge (“U”) concluded that because Bonilla had been a lawful permanent resident for fewer than seven years and had been convicted of a firearms offense, he was ineligible for any form of relief under the Immigration and Nationality Act of 1950 (“INA”), including a waiver of inadmissibility under former § 212(c). The IJ therefore ordered him deported.

Bonilla appealed the decision to the BIA, pro se. In October 1995, the Board affirmed, on the ground that the reason for Bonilla’s deportation—his firearms conviction—precluded his eligibility for § 212(c) relief. The BIA did not address the IJ’s determination that Bonilla was also ineligible for relief under § 212(c) because he had held lawful permanent residence for fewer than seven years.

Bonilla married Ana Lilian Bonilla, a United States citizen, in February 1996. At the time of the marriage, the couple had an infant son, Jessie, also a United States citizen. After the 'marriage, a notario advised Bonilla to surrender himself and present his marriage certificate to immigration officials. Bonilla did so, and was taken to the San Pedro Detention Center.

While Bonilla was detained, his father and Ana met with and retained Manuel Rivera, an immigration attorney, who assured them he could get Bonilla out of detention and stop his deportation. Ana asked Rivera if there were any forms she or Bonilla should file; Rivera said no. On March 12, 1996, Rivera filed with the Board a motion to reopen for adjustment of status and a request for stay of deportation. He also filed an application for a stay of deportation with the Immigration and Naturalization Service (“INS”).

The Board and INS denied the stay requests, and Bonilla was deported to El Salvador. Rivera then told Ana there was nothing more he could do. He never sent Bonilla or Ana any copies of the documents he filed or received on Bonilla’s behalf.

Shortly thereafter, the Board denied Bonilla’s motion to reopen for adjustment of status. To have his status adjusted, the Board explained, Bonilla had to (1) make an application for adjustment of status; (2) have an immigrant visa immediately available to him at the time of filing his application; and (3) be eligible to receive a visa and be admissible for permanent residence. Bonilla never filed an application for adjustment of status (Form 1^485), and an immigrant visa petition (Form 1-130) was never filed on his behalf. As there was no indication in the record that Bonilla could ’have had an immigrant visa immediately available to him, the Board denied the motion to reopen.

Bonilla and Ana then retained another immigration attorney, Philip Abramowitz. Abramowitz advised Ana to file an immigrant visa petition on Bonilla’s behalf. She did so on October 30, 1996; the petition was approved on June 2, 1997. During the course of his representation, Abramowitz never told Bonilla that the Board had denied his motion to reopen in May 1996, nor that Rivera should have filed an immigrant visa petition and an application for adjustment of status.

In May 1999, while in El Salvador, Bon-illa was shot by gang members. Soon after, he fled the country and reentered the United States without inspection.

In 2002, Bonilla consulted a pro bono attorney at an immigration workshop. He explained his case and showed her all of the case-related documents he had. The attorney told Bonilla there was nothing she could do to help him. He “had[] to wait a few years before [he] could seek legal assistance to fix [his] immigration case,” she said.

Bonilla then waited six years to seek further legal assistance. In 2008, Bonilla and Ana met with Eddie Bonilla (no relation) at Servicio Latino Legal Offices. Eddie Bonilla claimed to be a licensed immigration attorney but, it turned out, was not—he was a notary unlawfully practicing law. Eddie Bonilla reviewed Bonilla’s documents and told Bonilla he had to wait another year before taking any action. In 2009, Bonilla returned and retained Eddie Bonilla to represent him. Eddie Bonilla filed with the Board a pro se motion to reopen or reconsider the denial of appeal. The motion was denied.

Still pursuing her husband’s case, Ana consulted with Stacy Tolchin, Bonilla’s current attorney, in the fall of 2011. Unlike the lawyers and faux lawyer consulted earlier, Tolchin obtained Bonilla’s immigration files from this court, and informed Bonilla and Ana that the Board had denied Bonil-la’s first motion to reopen back in May 1996. She also advised them that an immigrant visa petition should have been filed before filing the motion to reopen, which Rivera had not told them.

On December 1, 2011, Tolchin filed a motion to reopen Bonilla’s 1995 deportation order based on ineffective assistance of counsel. Shortly thereafter, the Supreme Court decided Judulang v. Holder, 565 U.S. -, 132 S.Ct. 476, 181 L.Ed.2d 449 (2011). Judulang disapproved a BIA practice concerning the granting of § 212(c) relief. Invoking the change of law announced in Judulang, Tolchin filed on Bonilla’s behalf a supplement to his motion to reopen, asking the Board to exercise its sua sponte jurisdiction and reopen his deportation order so that he could apply for § 212(c) relief under Judulang.

The Board denied Bonilla’s motion to reopen for adjustment of status. It held that equitable tolling of the filing period was not merited, as Bonilla did not demonstrate either due diligence or prejudice. In addition, the Board declined to exercise its sua sponte authority to reopen the deportation proceedings. Bonilla timely filed a petition for review.

II. JURISDICTION AND STANDARD OF REVIEW

We have jurisdiction under 8 U.S.C. § 1252 to review the Board’s denial of Bonilla’s motion to reopen for adjustment of status. See Avagyan v. Holder, 646 F.3d 672, 674 (9th Cir. 2011). We review the Board’s denial of a motion to reopen for abuse of discretion, but review purely legal questions de novo. See Iturribarria v. INS, 321 F.3d 889, 894 (9th Cir. 2003). “The BIA abuses its discretion when its decision is arbitrary, irrational, or contrary to law.” Avagyan, 646 F.3d at 678 (citation and internal quotation marks omitted).

The Supreme Court recently left open the question “whether federal courts may review the Board’s decision not to reopen removal proceedings sua sponte.” Kucana v. Holder, 558 U.S. 233, 251 n.18, 130 S.Ct. 827, 175 L.Ed.2d 694 (2010). Before Kucana, we had held that, generally, we lack jurisdiction to review denials of sua sponte reopening. See Ekimian v. INS, 303 F.3d 1153, 1159 (9th Cir. 2002). But we have not specifically addressed whether we have jurisdiction to review the Board’s denial of a motion to reopen sua sponte for the limited purpose of determining whether the Board based its decision on legal or constitutional error. Several circuits have held that courts of appeal do have such limited jurisdiction. See, e.g., Salgado-Toribio v. Holder, 713 F.3d 1267, 1271 (10th Cir. 2013); Pllumi v. Attorney General, 642 F.3d 155, 160 (3d Cir. 2011); Mahmood v. Holder, 570 F.3d 466, 469 (2d Cir. 2009). For reasons explained in Part III.B, infra, we agree with those decisions.

III. DISCUSSION

A. Motion to Reopen for Adjustment of Status Based on Ineffective Assistance of Counsel

1. Ineffective Assistance of Counsel as a Basis for Equitable Tolling

Generally, a motion to reopen must be filed “within 90 days of the date of entry of a final administrative order of removal,” 8 U.S.C. § 1229a(c)(7)(C)(i), and an alien is limited to one such motion. Id, § 1229a(c)(7)(A). But, because Bonilla’s final deportation order preceded the imposition of the current time and number limitations on motions to reopen, his motion to reopen was due by September 30, 1996. See Executive Office for Immigration Review; Motions and Appeals in Immigration Proceedings, 61 Fed. Reg. 18900-01 (Apr. 29, 1996). Bonilla did not file the motion to reopen at issue in this case until December 1,2011, more than fifteen years late.

Failure to meet the filing deadline is not fatal where equitable tolling is available. “Ineffective assistance of counsel is one basis for equitable tolling.” Singh v. Holder, 658 F.3d 879, 884 (9th Cir. 2011). Equitable tolling applies in ineffective assistance of counsel cases because, “[ajlthough there is no Sixth Amendment right to counsel in a deportation proceeding, the due process guarantees of the Fifth Amendment still must be afforded to an alien petitioner.” Avagyan, 646 F.3d at 676-77 (citation omitted). Ineffective assistance of counsel in a deportation proceeding denies an alien petitioner his due process rights “if the proceeding was so fundamentally unfair that the alien was prevented from reasonably presenting his case.” Id. at 677 (citation omitted). Erroneous legal advice that results in the petitioner failing to file a timely motion to reopen is such a denial of due process. Id. “Consequently, we ‘recognize[] equitable tolling of deadlines and numerical limits on motions to reopen ... during periods when a petitioner is prevented from filing because of [his attorney’s] deception, fraud, or error, as long as the petitioner acts with due diligence in discovering the deception, fraud, or error.’” Id. (quoting Iturribarria, 321 F.3d at 897).

To determine whether a petitioner exercised due diligence, we consider three factors: (1) “if (and when) a reasonable person in petitioner’s position would suspect the specific fraud or error underlying her motion to reopen”; (2) “whether petitioner took reasonable steps to investigate the [attorney’s] suspected fraud or error, or, if petitioner is ignorant of counsel’s shortcomings, whether petitioner made reasonable efforts to pursue relief’; and (3) “when the tolling period should end; that is, when petitioner definitively learns of the harm resulting from counsel’s deficiency.” Avagyan, 646 F.3d at 679 (citations omitted). The petitioner need not “act with the maximum diligence possible—only due or reasonable diligence.” Id. (internal quotation marks omitted). Our review of the petitioner’s diligence is “fact-intensive and case-specific, assessing the reasonableness of petitioner’s actions in the context of his or her particular circumstances.” Id.

2, Review of Bonilla’s Asserted Diligence

Bonilla argued in his motion to reopen for adjustment of status that the Board should reopen its 1995 decision affirming his order of deportation because his first attorney, Manuel Rivera, and the notary posing as an attorney, Eddie Bonilla, both provided ineffective assistance. Bonilla acknowledged that the motion was filed many years past the deadline for filing such motions, but contended that he had demonstrated due diligence during, and therefore was entitled to equitable tolling for, the years between 1996 and 2011.

The Board disagreed, holding, inter alia, that Bonilla did not act with' due diligence, as there was a six year gap— between 2002 and 2008—in his pursuit of legal advice. We enforce the denial of the motion to reopen on this ground, and so do not reach the Board’s other bases for denying the motion to reopen. Assuming, therefore, that Bonilla was indeed “ignorant of [his prior] counsel’s shortcomings” when he consulted his present attorney in 2011, Avagyan, 646 F.3d at 679, the question is whether Bonilla “made reasonable efforts to pursue relief,” despite that six-year lapse. Id.

Bonilla explained that he did not seek any legal assistance from 2002 to 2008 because he was following the 2002 advice of the pro bono attorney he consulted at an immigration workshop. That attorney told him to “wait a few years.” Bonilla contends that it was reasonable for him to rely on the immigration workshop attorney’s advice.

Taking into account the- “particular circumstances,” Avagyan, 646 F.3d at 679, we note, first, that Bonilla did give the attorney what he thought to be the necessary information about his case and had no reason to believe her advice incorrect. But Bonilla appears to have had no meaningful or sustained relationship with that attorney; he did not provide her name, for example, nor any details about the immigration workshop, such as its sponsoring organization or location. Lacking any continuing connection to the lawyer or- the sponsoring organization, he'could not, and did not, follow up with her, nor she with him. Nor did Bonilla explain the basis for the attorney’s recommendation to wait, perhaps because she did not offer one,1 or because he did not understand or remember what she said.

Most importantly, although the attorney advised Bonilla to wait “a few years” to seek further legal help, she did not advise him how long to wait. Because of the lack of any ongoing relationship, she was in no position to contact him when the appropriate time to seek relief had arrived and did not do so.

In the end, Bonilla waited six years to take any further action to negate the 1995 deportation order. He provides no explanation for waiting that long.

Given the exceedingly long lapse of time before seeking further legal advice, the lack of any continuing relationship or follow up with the lawyer relied upon, and the general nature of the advice offered, the BIA appropriately concluded that Bon-illa did not make “reasonable efforts to pursue relief,” Avagyan, 646 F.3d at 679, and so did not demonstrate the diligence necessary for equitable -tolling.

We deny Bonilla’s petition for review as to the motion to reopen for adjustment of status.

B. Motion to Reopen Sua Sponte

After the Supreme Court rejected the comparable-grounds approach in Judulang, see note 3, supra, Bonilla asked the Board to exercise its sua sponte authority to reopen his 1995 deportation order so that he could now apply for § 212(c) relief, as Judulang would allow. The Board denied the request. Maintaining that the Board’s denial of sua sponte reopening rested on an erroneous legal premise, Bon-illa asks that we correct the error and vacate the Board’s denial of sua sponte relief.

We conclude that we do have jurisdiction to review the Board’s decision so as to assure that the Board made its discretionary decision on the correct understanding of the applicable legal principles. As the Board premised its decision on an erroneous understanding of the legal principles concerning the relationship between prior deportation, reopening of deportation proceedings, and eligibility for § 212(c) relief, we will grant the petition and return the case to the Board for further consideration.

1. Origins of the Board’s Sua Sponte Reopening Authority

We begin our consideration of the jurisdictional question before us by revisiting some history of the concept of reopening.

Originally, in the immigration context, “reopening [was] a judicial creation....” Dada v. Mukasey, 554 U.S. 1, 12, 128 S.Ct. 2307, 171 L.Ed.2d 178 (2008) (citing federal court cases reviewing administrative decisions denying motions to reopen removal proceedings from the early 1900s). In 1958, the year the BIA was established, “the Attorney General promulgated a rule for the reopening and reconsideration of removal proceedings.... ” Id. at 13, 128 S.Ct. 2307 (citing 23 Fed. Reg. 9115, 9118-9119 (1958), final rule codified at 8 C.F.R. § 3.2 (1959)).

Today, the Board’s authority to grant or deny a motion to reopen is still found in a regulation, 8 C.F.R. § 1003.2(a), which closely follows the 1958 version. Dada, 554 U.S. at 13, 128 S.Ct. 2307. The current regulation provides:

The Board may at any time reopen or reconsider on its own motion any case in which it has rendered a decision.... The decision to grant or deny a motion to reopen or reconsider is within the discretion of the Board, subject to the restrictions of this section. The Board has discretion to deny a motion to reopen even if the party moving has made out a prima facie case for relief.

8 C.F.R. § 1003.2(a).

Until 1996, there was no time limit for requesting reopening. Dada, 554 U.S. at 13, 128 S.Ct. 2307. In 1990, Congress, “fearful that deportable or excludable aliens were trying to prolong their stays in the U.S. by filing one type of discretionary relief ... after another in immigration proceedings,” ordered the Attorney General to issue regulations limiting the number of motions and setting a maximum time period within which to file them. Id. (citation and internal alterations, omitted). Although “[t]he Attorney General found little evidence of abuse,” Congress did not rescind or adjust its request. Id. So, in 1996, the Department of Justice issued a regulation imposing time limits and filing restrictions. Id. (citing Executive Office for Immigration Review; Motions and Appeals in Immigration Proceedings, 61 Fed. Reg. 18900, 18901, 18905 (1996)). Congress then codified those rules in the Illegal Immigration Reform and Responsibility Act of 1996 (“IIRIRA”). Id. at 14,128 S.Ct. 2307. . .

“IIRIRA provided the first statutory right to a motion to reopen.... ” Meza-Vallejos v. Holder, 669 F.3d 920, 924 (9th Cir. 2012) (citing 8 U.S.C. § 1229a(e)(7)). With certain narrow exceptions, IIRIRA limited an alien to one motion to reopen, to be filed within 90 days of the date of entry of a final administrative order of removal. 8 U.S.C. §§ 1229a(c)(7)(A), (c)(7)(C)©. IIRIRA thus “transform[ed] the motion to reopen from a regulatory procedure to a statutory form of relief available to the alien.” Kucana, 558 U.S. at 249, 130 S.Ct. 827 (alteration in original) (quoting Dada, 554 U.S. at 14, 128 S.Ct. 2307).

Notwithstanding the statutory provisions that now provide the contours of the reopening process, Congress never codified the regulation specifically authorizing the Board to grant or deny a motion to reopen or reconsider. Kucana, 558 U.S. at 249, 130 S.Ct. 827. The regulation codified at 8 C.F.R. § 1003.2(a) thus remains the sole enunciation of the reach of that power. Id. at 249-50, 130 S.Ct. 827.

Since the enactment of IIRIRA, where the timing and numerosity statutory requirements are not met and equitable tolling is unavailable, the only way an alien can reopen an adverse final order of removal is to ask the Board to exercise its sua sponte authority—that is, to reopen the case “on its own motion.” 8 C.F.R. § 1003.2(a); see also In re J-J-, 21 I. & N. Dec. 976, 984, Interim Decision 3323 (BIA 1997) (discussing the Board’s “limited discretionary powers under the regulations to reopen or reconsider cases on [its] own •motion”). Neither the authorizing regulation, 8 C.F.R. § 1003.2(a), nor IIRIRA’s statutory provisions supply a standard for the Board to apply when deciding whether to grant or deny a motion to reopen sua sponte.

The Board has, however, articulated some general parameters for the exercise of its sua sponte powers. It has cautioned that its sua sponte power to reopen “is not meant to be used as a general cure for filing defects or to Otherwise circumvent the regulations, where enforcing them might result in hardship.” In re J-J-, 21 I. & N. Dec. at 984. Rather, the Board “must be persuaded that the respondent’s situation is truly exceptional before [it] will intervene.” In re G-D-, 22 I. & N. Dec. 1132, 1134 (BIA 1999). For example, “sua sponte action by the Board is appropriate” where there has been “a fundamental change in the law” that represents “a departure from established principles.” Id. at 1135. Importantly, however, the Board is not required—by regulation or its own decisions—to reopen proceedings sua sponte in exceptional situations. Ekimian, 303 F.3d at 1158.

2. Jurisdiction to Review the Board’s Decision to Deny a Motion to Reopen Sua Sponte

Ekimian held that we ordinarily lack jurisdiction to review a Board decision denying sua sponte reopening, as the breadth and generality of the “truly exceptional situations” locution, In re G-D-, 22 I. & N. Dec. at 1134, provides no judicially manageable standard with which to do so. Ekimian, 303 F.3d at 1159.

The Board had denied the Ekimians’ motion to reopen sua sponte because it did “not find sufficient grounds ... to warrant” doing so. Id. at 1157. The Ekimians then petitioned for review, arguing that because the Board had stated that it could reopen proceedings sua sponte “in exceptional situations,” id. (quoting In re J-J-, 21 I. & N.. Dec. at 984), this court had “jurisdiction to review the BIA’s determination that ‘exceptional situations’ do not exist” for abuse of discretion. Id. We rejected that argument. Id. at 1159.

In doing so, we “[took] some guidance from” Heckler v. Chaney, 470 U.S. 821, 105 S.Ct 1649, 84 L.Ed.2d 714 (1985), which considered the provisions for judicial review of agency actions set out in the Administrative Procedure Act. Ekimian, 303 F.3d at 1158. In particular, 5 U.S.C. § 701(a)(2). provides that the chapter on judicial review does not apply when an “agency action is committed to agency discretion by law.” Heckler explained that, under § 701(a)(2), “even where Congress has not affirmatively precluded review, review is not to be had if the statute is drawn so that a court would have no meaningful standard against which to judge the agency’s exercise of discretion.” Heckler, 470 U.S. at 830, 105 S.Ct. 1649. This exception to judicial review is “very narrow,” and applies “in those rare instances wheré statutes are drawn in such broad terms that in a given case there is no law to apply.” Id. (quoting Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 410, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971)) (internal quotation marks omitted). Drawing on Heckler, Ekimian explained that the Ekimians “[could not] point to any statutory, regulatory, or case law definition of ‘exceptional circumstances’ applicable to the BIA’s sua sponte power under § 3.2(a),” and so rejected the argument that “exceptional situations” was a meaningful judicial standard for reviewing the Board’s discretion. 303 F.3d at 1159. “Because we [could not] discover a sufficiently meaningful standard against which to judge the BIA’s decision not to reopen” sua sponte, Ekimian held, “we do not have jurisdiction to review the BIA’s refusal to reopen deportation proceedings sua sponte.” Id. at 1159-60.

Ekimian’s holding that the “exceptional situation” benchmark does not provide a sufficiently meaningful standard to permit judicial review remains good law. This court has relied on or approvingly cited Ekimian in fifteen published opinions. But neither Ekimian nor any of the later cases considered the question presented here: whether appellate courts have jurisdiction to review the Board’s denial of a motion to reopen sua sponte for the limited purpose of identifying legal or constitutional error.

Neither the immigration statute nor' any regulation expressly precludes judicial review of motions to reopen, whether sua sponte or otherwise. Absent any such proscription,- there is a “presumption favoring interpretations of statutes [to] allow judicial review of administrative action.” Kucana, 558 U.S. at 237, 130 S.Ct. 827 (alterations in original) (quoting Reno v. Catholic Soc. Servs., Inc., 509 U.S. 43, 64, 113 S.Ct. 2485, 125 L.Ed.2d 38 (1993)); see also Gutierrez de Martinez v. Lamagno, 515 U.S. 417, 434, 115 S.Ct. 2227, 132 L.Ed.2d 375 (1995) (“executive determinations generally -are subject to judicial review”). That presumption is “well-settled,” Kucana, 558 U.S. at 252, 130 S.Ct. 827 (quoting Catholic Soc. Servs., 509 U.S. at 63, 113 S.Ct. 2485), and particularly important where legal and constitutional questions are at issue.

For example, IIRIRA stripped courts of jurisdiction to review most discretionary decisions or actions of the Attorney General and Secretary of Homeland Security, the authority for which was specified under a particular statutory subchapter. See 8 U.S.C. § 1252(a)(2)(B)(ii). The REAL ID Act of 2005 clarified, however, that courts were not precluded from reviewing “constitutional claims or questions of law raised upon a petition for review.” ' Id. § 1252(a)(2)(D). The recognition in § 1252(a)(2)(D) that legal or constitutional issues are reviewable even when the statute makes the underlying decision discretionary is reflective of a general recognition that there is no preclusion of- such review if otherwise ordinarily available. Indeed, our court held that we retained jurisdiction over legal and constitutional questions raised regarding BIA discretionary decisions even before Congress so stated in the REAL ID Act, further confirming the strength of the presumption of review-ability. See, e.g., Romero-Torres v. Ashcroft, 327 F.3d 887, 890 (9th Cir. 2003) (explaining that IIRIRA did not eliminate our jurisdiction over purely legal questions) (citing Molino-Estrada v. INS, 293 F.3d 1089, 1093-94 (9th Cir. 2002); Montero-Martinez v. Ashcroft, 277 F.3d 1137, 1144 (9th Cir. 2002)); Torres-Aguilar v. INS, 246 F.3d 1267, 1270-71 (9th Cir. 2001)- (holding that we had jurisdiction to review a BIA decision for the denial of due process).

Our recent decision in Singh v. Holder, 771 F.3d 647 (9th Cir. 2014), confirms that we may review denials of' sua sponte reopening where, unlike in Ekimian and similar cases, there is “law to apply” in doing so. Singh argued in his petition for review that the Board abused its discretion when it erroneously concluded that it lacked authority under 8 C.F.R. § 1003.2(a) to reopen his exclusion proceedings so that he could pursue an adjustment of status application. Singh, 771 F.3d at 650. We concluded that “Ekimian [did] not preclude our jurisdiction.” Id. The jurisdictional bar announced in Ekimian, we explained, “rests on the absence of a judicially manageable standard for us to evaluate-the BIA’s exercise of discretion in ruling on a motion to reopen.” Id. In Singh, however, the BIA did not “deny[ ] a motion to reopen as an exercise of discretion”; it “conclude[d] that it lack[ed] the authority to reopen.” Id.

Singh held that the Board’s conclusion as to its lack of authority was contrary to plain statutory -language and our court’s precedents, and thus was “legal error.” Id. at 653. Singh-then granted the petition for review and remanded the case to the Board for an exercise of its discretion— that is, for a decision whether there were truly exceptional circumstances, a decision that remains unreviewable under Ekimi-an. Id. Singh thus limited our review to the Board’s legal conclusion—that, because of legal preclusion, it could not exercise its discretion.

There is little distinction as to judicial reviewability between the situation in Singh and the circumstances here. Bonil-la’s contention, upon which we elaborate below, is that the Board misunderstood the parameters of § 212(c) relief as applied to a legal permanent resident who had been deported and, based on that misunderstanding, concluded that it would not exercise its sua sponte authority to reopen because it would, in the.end, lack the legal authority to grant the relief requested. Just as in Singh, there is “law to apply” in reviewing that question—here, the substantive law governing § 212(c) relief when there has been a deportation of a lawful permanent resident. Reviewing that legal question will simply assure that the Board’s decision whether there is a “truly exceptional situation” meriting sua sponte relief is made on a proper understanding of the underlying law.

We therefore conclude that, as in Singh, this court has jurisdiction to review Board decisions denying sua sponte reopening for the limited purpose of reviewing the reasoning behind the decisions for legal or constitutional error. If, upon exercise of its jurisdiction, this court concludes that the Board relied on an incorrect legal premise, it should “remand to the BIA so it may exercise its authority against the correct ‘legal background.’” Pllumi, 642 F.3d at 160 (quoting Mahmood, 570 F.3d at 469). Once it does so, this court will have no jurisdiction to review the sua sponte decision, as Ekimian instructs.

In so ruling, we join three other circuits—the Second, Third, and Tenth. See Salgado-Toribio, 713 F.3d at 1271; Pllumi, 642 F.3d at 160 (“[W]hen presented with a BIA decision rejecting a motion for sua sponte reopening, we may exercise jurisdiction to the limited extent of recognizing when the BIA has relied on an incorrect legal premise.”); Mahmood, 570 F.3d at 469 (“[Wjhere the Agency may have declined to exercise its sua sponte authority because it misperceived the legal background and thought, incorrectly, that a reopening would necessarily fail, remand to the Agency for reconsideration in view of the correct law is appropriate.”); see also Anaya-Aguilar v. Holder, 697 F.3d 1189, 1190 (7th Cir. 2012) (“[W]e do not mean to foreclose review of the Board’s denial of a motion to reopen sua sponte in cases where a petitioner has a plausible constitutional or legal claim that the Board misapplied a legal or constitutional standard”). To our knowledge, no circuit squarely presented with this issue has held to the contrary.

3. Application of Jurisdiction to the Board’s Denial of Bonilla’s Motion to Reopen Sua Sponte

We turn to the limited legal question over which we do have jurisdiction— was the Board’s denial of Bonilla’s motion to reopen sua sponte premised on an erroneous legal understanding?

Bonilla contends that the Board refused to grant his motion for sua sponte reopening despite the substantial change in the law worked by Judulang because it believed, incorrectly, that Bonilla had lost his lawful permanent resident status when he was deported and, even if reopening were granted, would not thereby regain it pending a new removal determination. As a consequence, posits Bonilla, the Board believed he could never have sufficient lawful presence to become eligible for § 212(c) relief.

We agree with Bonilla that any such conclusion about the irrevocable loss of lawful permanent resident status would be legally incorrect. Generally, an alien’s lawful permanent resident status ends upon entry of a final administrative order of deportation. Matter of Lok, 18 I. & N. Dec. 101, 105 (BIA 1981). But if the BIA grants a motion to reopen, or a reviewing court holds that the BIA should have granted a motion to reopen, the final deportation .order is vacated—that is, it is as if it never occurred. See Nken v. Holder, 556 U.S. 418, 429 n.1, 129 S.Ct. 1749, 173 L.Ed.2d 550 (2009); see also Plasencia-Ayala v. Mukasey, 516 F.3d 738, 745 (9th Cir. 2008) (explaining that “[sjeveral courts of appeals, including” the Ninth Circuit, “have held that a grant of a motion to reopen vacates the final order of deporta tion”), overruled on other grounds by Marmolejo-Campos v. Holder, 558 F.3d 903 (9th Cir. 2009) (en banc). The previously terminated immigration proceedings thus are reinstated, and the alien is restored to his prior status. C.fi U.S. Immigration and Customs Enforcement, Facilitating the Return to the United States of Certain Lawfully Removed Aliens 2 (2012), https:// www.ice.gov/doclib/foia/dro_policy_memos/ 11061. Lcurr ent_p olicy_facilit ating_retur n. pdf (“[W]hen a ‘PFR is granted that returns a former LPR to the posture of a pre-order alien, the alien will once again, in contemplation of law, be an LPR even though removal proceedings may still be pending before EOIR on remand from the circuit court.”). Here, were the Board to grant Bonilla’s motion to reopen sua sponte, his previous deportation proceedings would be reinstated and he would be restored to the lawful permanent resident status he held then, unless and until the new proceedings close without granting relief.

Under Ortega de Robles, it appears that Bonilla had accrued seven years of lawful domicile at the time of his final deportation order. See 58 F.3d 1355. And even if the Board is unable to consider Bonilla’s lawful domicile from the point of his application for temporary resident status due to his failure to submit necessary documentation, restoration of Bonilla’s lawful permanent resident status upon reopening would result in his acquisition of seven years of unrelinquished lawful domicile prior to his deportation. Bonilla was admitted as a lawful permanent resident on February' 28, 1989. The BIA issued its final order of deportation on October 17, 1995. But Bon-illa was not deported to El Salvador until March 13, 1996. Thus, if his lawful permanent resident status were restored,, he would have accrued unrelinquished lawful domicile at least from February 28, 1989, and at least until March 13, 1996, a period of just over seven years.

The government did not engage with the merits of the alleged legal error in its brief or at oral argument. Instead, it maintained that the Board did not make the ruling of law Bonilla attributes to it. We disagree.

Bonilla had specifically addressed whether he had the requisite time and status for § 212(c) relief in his reply brief to the Board. He explained how he could satisfy the requirement, arguing that (1) “[i]f his case is reopened by the Board, then Respondent would be restored back to the status of a lawful permanent resident,” and (2) counting from his lawful admission in 1989 until he was deported, he would have been lawfully domiciled for more than seven years. It is the Board and the government, rather, that failed to address appropriately the effect that reopening would have on the deportation order and on Bonilla’s status and his eligibility for relief.

The relevant portion of the Board’s decision reads:

The respondent was not eligible for either a waiver of inadmissibility or adjustment of status at the time a final order had been entered by the Board on October 17, 1995, or within the time period to file a timely motion to reopen, or on or before September 30, 1996. Under the controlling authority at that time, the respondent was not eligible for a waiver of inadmissibility under former section 212(c) of the Act due to his firearms conviction.... Moreover, the respondent’s lawful permanent resident status terminated upon the entry of the final administrative order by the Board, and he no longer accrued lawful domicile. Matter of Lok, 18 I. & N. Dec. 101 (BIA 1981)....
Based on the totality of the circumstances presented in this case, and the arguments raised in the motion and its supplements, we conclude that sua sponte reopening of the respondent’s deportation proceedings is inappropriate. The respondent lost his-lawful permanent resident status upon this Board’s entry of a final order on October 17, 1995. See Matter of Lok, supra. The final deportation order was lawfully executed on March 13, 1996, and the respondent returned to El Salvador. His deportation “is a transformative, event that fundamentally alters the alien’s posture under the. law.” Matter of Armendarez[-Mendez], 24 I. & N. Dec. 646, 656 (BIA 2009). Despite the change in law set forth in Judulang v. Holder, supra, we do not find that proceedings should be reopened. The respondent has not addressed the effect of his deportation on his current eligibility for a 212(c) waiver (whether he can meet the lawful unrelinquished domicile requirement) ....

We are persuaded that the Board based its decision on the legal error we have identified. Quoting Matter of Armendarez[-Mendez], 24 I. & N. Dec. 646, 656 (BIA 2009), the Board characterized Bonil-la’s deportation as “a transformative event that fundamentally alters the alien’s posture under the law.” And the Board twice stated that Bonilla’s lawful permanent resident status terminated upon the Board’s entry of a final order of deportation on October 17,1995, and definitively held that Bonilla therefore “no longer accrued lawful domicile.” We see no way to understand these statements other than as a ruling that Bonilla had permanently lost his legal status and so could not meet the .§ 212(c) lawful domicile accrual requirements, even if his firearms conviction were not a barrier to relief, and even if reopening were granted on that basis.

In sum, the Board ruled on the premise that, because his deportation was a “trans-formative event,” Bonilla’s lawful permanent resident status would not be restored were the Board to reopen his deportation proceedings, and so Bonilla would not be able to establish the period of unrelin-quished lawful domicile required for § 212(c) relief. That legal ruling is unfounded, as we have explained. In fact, were reopening granted because of Judu-lang, Bonilla’s lawful permanent resident status would be restored as if it had never lapsed, and he would appear to have been lawfully domiciled for at least seven years before his original deportation, whether one calculates from his application for amnesty or from the beginning of his status as a legal resident alien. The Board’s statement of the law fails to account for its possible authority to grant relief in light of the changes in Bonilla’s status that reopening would bring about.

The Board must therefore revisit its sua sponte reopening decision on a proper understanding of its authority to grant Bonil-la i-elief if reopening is granted. If, on remand, the Board again declines to exercise its sua sponte authority to reopen, and does so without relying on a constitutionally or legally erroneous premise, its decision will not be reviewable.

CONCLUSION

For the foregoing reasons, we deny Bon-illa’s petition for review as to his motion to reopen for adjustment of status and the equitable tolling question. We exercise jurisdiction over Bonilla’s petition for review as to his motion to reopen sua sponte for the sole purpose of considering whether the Board based its decision on a legal error. Because we conclude it did so, we vacate and remand to the Board to exercise its discretion against the correct legal framework.

GRANTED IN PART, VACATED, AND REMANDED, AND DENIED IN PART.

The parties shall bear their own costs.

      . Section 212(c), .as interpreted by the BIA, "authorize[d] any permanent resident alien with 'a lawful unrelinquished domicile of seven consecutive years’ to apply for a discretionary waiver from deportation.” INS v. St. Cyr, 533 U.S. 289, 295, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001) (citing Matter of Silva, 16 I. & N. Dec. 26, 30 (BIA 1976)).

      . The government speculates that the reason for this omission may have been a change in law that occurred, between the date of the, IJ's decision and the BIA's final order. In June 1995, this court held that domicile, for the purposes of the seven-year requirement in § 212(c), is not always coincident with lawful permanent residence. See Ortega de Robles v. INS, 58 F.3d 1355, 1360-61 (9th Cir. 1995). Where an alien submitted a prima facie application for amnesty under 8 U.S.C. § 1255a, as Bonilla did, the period begins with the application. Id. By the time that the BIA adjudicated Bonilla's appeal, it would have had to consider the time from when Bonilla applied for temporary residence, Bonilla’s application for temporary residence is not included in the administrative record.'But in 2009, a United States Citizenship and Immigration Services decision on Bonilla's application for permis.sion to reapply for admission after deportation recited that Bonilla had applied for temporary residence on July 20, 1987. Bonilla further contends that, by regulation, he must have submitted his application at least 18 months prior to the granting of permanent resident status and thus no later than August 28, 1987. See 8 C.F.R. 245a.3(a) (1989).

      . Before it was repealed in 1996, INA § 212(c) authorized the Attorney General to grant relief to certain excludable aliens. By its terms, § 212(c) did not apply to deportation proceedings. The Board nonetheless adopted a policy permitting aliens in deportation proceedings to apply for § 212(c) relief. See St. Cyr, 533 U.S. at 295-96, 121 S.Ct. 2271. To determine when an alien should receive § 212(c) relief in the deportation context, the Board adopted a comparable-grounds approach—that is, it considered "whether the ground for deportation charged in a case has a close analogue in the statute’s list of exclusion grounds.” Judulang, 132 S.Ct. at 481. If so, the alien could seek § 212(c) relief. Using the comparable-grounds approach, the BIA held that § 212(c) relief was unavailable in deportation proceedings based on firearm convictions, because there was no comparable ground of excludability. See, e.g., Matter of Gabryelsky, 20 I. & N. Dec. 750 (BIA 1993); Matter of Montenegro, 20 I. & N. Dec. 603 (BIA 1992). Holding that the comparable-grounds approach was arbitrary and capricious, Judulang overruled the BIA’s previous decisions barring § 212(c) relief in deportation proceedings based on firearms convictions. 132 S.Ct. at 483.

      . It also is not fatal where the BIA decides to reopen proceedings on its own authority, which it may do at any time. See 8 C.F.R. § 1003.2(a). We address Bonilla’s motion to reopen sua sponte in Part III.B, infra.

      . The Board did not find that the facts alleged in Bonilla’s declaration are "inherently unbelievable,” so we accept them as true. Avagyan, 646 F.3d at 679 (quoting Ghahremani v. Gonzales, 498 F.3d 993, 999 (9th Cir. 2007)).

      . In his opening brief, Bonilla also maintained that it was futile to file a motion to reopen until 2010, when this court ruled unlawful a "departure bar” regulation providing that departure from the United States constituted a withdrawal of a motion to reopen made previously. See Reyes-Torres v. Holder, 645 F.3d 1073, 1075-76 (9th Cir. 2011); Coyt v. Holder, 593 F.3d 902, 906 (9th Cir. 2010). At oral argument on this appeal, Bonilla's attorney changed positions somewhat, arguing that filing would have been futile only until 2007, citing Lin v. Gonzales, 473 F.3d 979 (9th Cir. 2007). Or. Arg. Tr. 21:10-21:30. Leaving aside which date is correct, Bonilla did not raise this departure bar argument in any form to the BIA as a ground for granting equitable tolling. As the issue was not exhausted, we lack jurisdiction to consider it. See Alvarado v. Holder, 759 F.3d 1121, 1127 n.5 (9th Cir. 2014) (explaining that our court’s precedent “has squarely held that issue exhaustion is a jurisdictional requirement").

      . See Bear Valley Mut. Water Co. v. Jewell, 790 F.3d. 977, 990 (9th Cir. 2015); Carrillo v. Holder, 781 F.3d 1155, 1160 n.11 (9th Cir. 2015); Singh v. Holder, 771 F.3d 647, 650 (9th Cir. 2014); Mejia-Hernandez v. Holder, 633 F.3d 818, 824 (9th Cir. 2011); Pinnacle Armor, Inc. v. United States, 648 F.3d 708, 720 (9th Cir. 2011); Sharma v. Holder, 633 F.3d 865, 874 (9th Cir. 2011); Singh v. Holder, 658 F.3d at 884 n.6; Diaz-Covarrubias v. Mukasey, 551 F.3d 1114, 1117-18 (9th Cir. 2009); Minasyan v. Mukasey, 553 F.3d 1224, 1229 (9th Cir. 2009); Toufighi v. Mukasey, 538 F.3d 988, 993 n.8 (9th Cir. 2007); Malty v. Ashcroft, 381 F.3d 942, 945 n.1 (9th Cir. 2004); Guzman v. INS, 318 F.3d 911, 914 n.4 (9th Cir. 2003); Mendez-Gutierrez v. Ashcroft, 340 F.3d 865, 868 (9th Cir. 2003); Ramirez-Perez v. Ashcroft, 336 F.3d 1001, 1005 n.15 (9th Cir. 2003); Abassi v. INS, 305 F.3d 1028, 1032 (9th Cir. 2002).

      . Specifically, the Board denied Singh’s motion to reopen in reliance on Matter of Yauri, 25 I. & N. Dec. 103 (BIA 2009). Matter of Yauri involved an arriving alien who filed with the BIA a motion to reopen sua sponte her removal proceedings and then continue them indefinitely to permit her to pursue an adjustment of status application before United States Citizenship and Immigration Services ("USCIS”). 25 I. & N. Dec. at 103-04. The Board denied Yauri’s motion to reopen. It noted that because Yauri was an arriving alien, USCIS, not the BIA, had jurisdiction over her adjustment application. Id. at 107. It then reasoned that Yauri effectively was seeking a stay of removal pending adjudication of her adjustment application; considered whether it had authority to issue a stay, rather than asking whether it had authority to reopen and continue Yauri’s proceedings; and concluded that it lacked such authority. Id. at 108-10.
      "We decline[d] to follow Yauri” because its interpretation of 8 C.F.R. § 1003.2(a) was "contrary to the plain language of the regulation.” Singh, 771 F.3d at 652. Because § 1003.2(a) “plainly and unambiguously states that '[t]he Board may at any time open or reconsider on its motion any case in which it has rendered a decision,’ ” we explained, the Board in fact did have authority to reopen Singh’s proceedings under § 1003.2(a). Id. (alteration in original). We then further explained that the Board’s conclusion that it lacked the authority to reopen Singh’s case was contrary to our case law holding that the Board had jurisdiction to grant a motion to reopen to provide time for USCIS to adjudicate a pending adjustment application. Id. (citing Kalilu v. Mukasey, 548 F.3d 1215, 1218 (9th Cir. 2008)).

      . We note that the government’s brief did not address the judicial review question we here address. And, at oral argument, the government's attorney did not answer the court’s inquiry as to the propriety of the position adopted by the other circuits on the limited reviewability of denials of sua sponte reopening. The lawyer maintained that he was not "authorized” to take a position on the issue. Or. Arg. at 13:06-13:50. Such reticence is unacceptable. Where an important issue is directly raised by the opposing party and, on one view of the record at least, is necessary to decide to reach a reasoned conclusion, we rely on attorneys appearing in our court, including attorneys for the government, to assist us in analyzing and evaluating the issues properly before us.

      . The Eighth Circuit has expressed some skepticism about the holdings in Pllumi and Mahmood. See Barajas-Salinas v. Holder, 760 F.3d 905, 908 n* (8th Cir. 2014).

      . See also Contreras-Bocanegra v. Holder, 678 F.3d 811, 818-19 (10th Cir. 2012) (en banc) (“When the Board grants a motion to reopen, this action vacates the underlying removal order and restores the noncitizen to her prior status.”); Bronisz v. Ashcroft, 378 F.3d 632, 637 (7th Cir. 2004) ("[T]he grant of a motion to reopen vacates the previous order of deportation or removal and reinstates the previously terminated immigration proceedings.”) (drawing on Lopez-Ruiz v. Ashcroft, 298 F.3d 886, 887 (9th Cir. 2002)); Henry v. INS, 8 F.3d 426, 435 (7th Cir. 1993) ("[I]f a petition for review were granted, the alien’s lawful permanent resident status would be restored and the alien would then continue to accumulate time toward the seven-year residency requirement [for § 212(c) relief].”).

      . The government asserts for the first time in its Petition for Rehearing that Bonilla has never submitted an application for relief under § 212(c), and that his eligibility for such relief would therefore require seven years of lawful domicile counting back from the date on which a new application is filed. But the underlying record shows Bonilla brought his application to the attention of both the IJ and the BIA at the original proceedings, and both considered that application.
      The captions of both the IJ and BIA decisions from 1995 note “Waiver of Inadmissibility" as the "Application” at issue. Additionally, the summary of the IJ’s oral decision and order (a checklist form filled in and signed by the IJ) marks that the- "Respondent's application for section 212(c) waiver was granted/denied,” with "denied” circled. None of the three form sentences for other types of relief were checked off. Bonilla appealed the decision, noting that although he had failed to submit a requisite application form in advance of the hearing, he had been unaware of the requirement and unable to complete it while in detention. The BIA then held that Bonilla was ineligible for § 212(c) relief on the basis of his firearms conviction and stated that it did not need to "address, therefore, his contention that he was prevented from completing an application for relief ... due to his detention.”
      We are satisfied that Bonilla made an application, whether written or oral, and that the IJ and BIA, so recognizing, each made determinations on its merits.

      . At the end of its discussion of Bonilla's eligibility for § 212(c) relief, after having ruled that he had lost his permanent resident status before he had accrued seven years of lawful residency, the Board stated that Bonil-la had not "addressed the effect of his deportation” on his ability to meet the unrelin-quished lawful domicile requirement. The Board could not have meant that Bonilla had waived the issue of the impact of his deportation on his period as a lawful permanent resident, as he did raise and discuss it. And, as recounted in the text, the Board ruled on the merits of the matter. So the Board's comment on Bonilla's briefing was simply that Bonilla's explanation was necessarily insufficient, given the Board’s understanding of the pertinent law. It is that legal understanding that we hold to be in error.

      . Bonilla’s reply brief contained a factual error: it stated he was deported on May 30, 1996, but he actually was deported on March 13, 1996. The error is irrelevant to Bonilla’s reasoning, and does not change the ultimate conclusion that he satisfied the seven-year requirement.


source: Caselaw Access Project

author: OWENS, Circuit Judge:

license: Public Domain

text:
    ESTATE OF Manuel DIAZ; Genevieve Huizar, an individual, Plaintiffs-Appellants, v. CITY OF ANAHEIM, a California municipal entity; Nick Bennallack, Officer, Defendants-Appellees.
    No. 14-55644
    United States Court of Appeals, Ninth Circuit.
    Argued and Submitted July 7, 2016, San Francisco, California
    Filed August 24, 2016
    Amended October 27, 2016

      Dale K. Galipo (argued) and Melanie T. Partow, Law Offices of Dale K. Galipo, Woodland Hills, California; Angel Car-razco, Jr., Carrazco Law, A.P.C., Tustin, California; Paul L. Hoffman, Schonbrun Desimone Seplow Harris & Hoffman, LLP, Venice, California; Humberto Guizar, Humberto Guizar Law Offices, Montebello, California; for Plaintiffs-Appellants.
    Moses W. Johnson, IV (argued), Assistant City Attorney, Anaheim, California; Steven J. Rothans and Jill Williams, Carpenter, Rothans & Dumont, Los Angeles, California; for Defendants-Appellants.
    Denise L. Rocawich, James R. Touchstone, and Martin J. Mayer, Jones & Mayer, Fullerton, California, for Amici Curiae California Police Chiefs’ Association, California State Sheriffs’ Association, and California Peace Officers’ Association.
    Steven J. Renick, Manning & Kass Ell-rod Ramirez Trester LLP, Los Angeles, California, for Amicus Curiae International Municipal Lawyers Association.
    Before: MARSHA S. BERZON and JOHN B. OWENS, Circuit Judges, and ALGENON L. MARBLEY, District Judge.

      The Honorable Algenon L, Marbley, United States District Judge for the Southern District of Ohio, sitting by designation.

   ORDER

The opinion filed on August 24, 2016, and reported at 834 F.3d 1048, is hereby amended. The superseding amended opinion will be filed concurrently with this order.

The panel has voted to deny the petition for panel rehearing. Judges Berzon and Owens voted to deny the petition for rehearing en banc, and Judge Marbley so recommends.

The full court has been advised of the suggestion for rehearing en banc, and no active judge has" requested a vote on whether to. rehear the matter en banc. Fed. R. App. P. 35.

The petition for panel rehearing and rehearing en banc is DENIED.

No further petitions for panel rehearing or petitions for rehearing en banc will be entertained.

OPINION

OWENS, Circuit Judge:

Anaheim Police Officer Nicholas Bennal-lack shot and killed Manuel Diaz during a mid-day encounter in July 2012. Diaz’s estate and mother (“Plaintiffs”) sued Officer Bennallack and the City of Anaheim (“Defendants”) for federal civil rights violations and proceeded to a jury trial, but lost. Plaintiffs argue they should receive a new trial due to inflammatory evidence introduced by Defendants, that had no relevance to the key issue in the case—whether Officer Bennallack acted within the law when he shot Diaz. Because the district court abused its discretion in failing to bifurcate liability from compensatory damages;—thus admitting this evidence at the liability phase of the trial—and the error was harmful, we reverse and remand.

I. FACTS AND PROCEDURAL HISTORY

A. Fatal Shooting of Manuel Diaz

While on routine patrol in gang territory the afternoon of July 21, 20Í2, Officers Bennallack and Heitmann drove their unmarked black Crown Victoria into an alley off of Anna Drive in Anaheim, California. They were not responding to a call or plea for help, though Bennallack had arrested a man for gun possession there two weeks prior.

In the alley, Bennallack saw Diaz and another man standing near a parked vehicle, with a third man inside. Bennallack neither recognized Diaz nor saw anything in his hands. But, Bennallack thought that criminal activity was afoot, and that Diaz was a gang member, based on his experience in the area and how Diaz was dressed.

Shortly after the officers drove into the alley, and before they said anything to Diaz, Diaz ran away. The officers pursued on foot. Officer Heitmann said he saw Diaz clutching an object near his waist before he took off, but Bennallack—the shooter— did not. While initially hoping to have a consensual conversation with Diaz, once the chase began Bennallack intended to arrest him for the misdemeanor offense of resisting, obstructing, or delaying a police officer.

As the officers chased Diaz, they could not see his hands. Based on how Diaz’s arms were not “pumping” as expected and the outward position of his elbows, Bennal-lack claimed, he thought Diaz’s hands were in his waistband. Another witness did not see Diaz put his hands at his waistband. Both officers said that Diaz looked back at them while he was running away, which they took as his attempt to “acquire a target.”

The officers yelled commands such as “stop,” “get on the ground,” and “show me your hands,” but Diaz kept running, and eventually went through a gate and into a courtyard. Bennallack was roughly five to ten feet behind Diaz during the chase. Bennallack testified that at one point, Diaz possibly could have exited through a gate to the street, but did not. The officers took this as an escalation of danger, fearing that Diaz was hoping to lure them into an enclosed space to shoot them.

Diaz then slowed down. Witnesses disagreed about his movements at this point. Bennallack said Diaz turned to his left, while Heitmann said he turned to his right. One witness did not see him turn or make any threatening movements, while another saw Diaz turn in a non-threatening manner when the police told him to get on the ground.

As Diaz started to turn, Bennallack claimed to see a black cloth object going over a fence close to Diaz. Bennallack said that he believed Diaz had a gun in a “low-ready” position in front of his body, ready to fire. According to Bennallack, as Diaz turned and Bennallack saw the object in the air, he fired twice. When Bennallack shot Diaz, he could not see any part of his arms or hands. The shots occurred within one to two seconds after Diaz started to slow down; Bennallack made no lethal force warning. The first bullet entered Diaz’s right buttock and was lodged in’ his left thigh. The second bullet entered the right side of Diaz’s head, just above and behind his right ear, and exited the left side of his head near his left ear. Diaz was handcuffed and searched. He died shortly thereafter at a nearby hospital. Officers found a black cell phone and narcotics pipe nearby. No firearm was recovered from the scene.

B. Pretrial Litigation

Diaz’s estate and his mother, Genevieve Huizar, brought suit against the City of Anaheim and Officer Bennallack. Huizar sought only non-economic damages, i.e., her loss of Diaz’s love, companionship, comfort, care, assistance, protection, affection, society, and moral support.

A number of Plaintiffs’ claims were disposed of by stipulation and the district court’s partial grant of Defendants’ motion for summary judgment. By trial, Plaintiffs’ remaining claims included three claims under 42 U.S.C. § 1983 (excessive force and unreasonable detention under the Fourth Amendment and unlawful interference with familial relations under the Fourteenth-Amendment) and one claim for battery under California state law.

a.Motions In Limine

The parties filed a number of motions in limine, some of which are relevant on appeal.

Gang Affiliation: The district court ruled that evidence that Anna Drive was a known gang area was relevant to liability, but that Diaz’s gang affiliation was relevant only to damages—the theory being that his gang membership undermined the strength of his mother’s love for him and their relationship. The court excluded photographs of his gang tattoos, but noted it would revisit this issue if Diaz’s mother testified with respect to damages that she had no knowledge of his gang affiliation.

Photographs: The court in principle agreed with Defendants that photographic evidence from Diaz’s cell phone and Face-book page that Diaz possessed a weapon prior to the incident was relevant to the excessive force analysis under Boyd v. City & County of San Francisco, 576 F.3d 938, 943-44 (9th Cir. 2009). However, the court indicated it would likely exclude as irrelevant photos of gang activities and stacks of money.

Drug Usage: The court ruled that because Defendants did not offer evidence that Bennallack observed Diaz behaving erratically during the incident, toxicology evidence of methamphetamine use was not relevant to § 1983 liability. Defendants also asserted that the toxicology evidence was relevant to damages, but the court’s written order rejected this theory.

Gang Expert: The court permitted Daniel Gonzalez, a gang expert, to opine on Diaz’s gang membership, but only as relevant to damages. The court noted that his gang affiliation had limited relevance to the amount of damages, and any testimony should be brief. The court also stated that if the parties agreed to stipulate to Diaz’s gang membership, it would reconsider its decision to allow Gonzalez to testify. The court specifically excluded as unduly prejudicial testimony about gang activities in general; that Anna Drive was part of the gang’s turf (as Bennallack would testify to this and it was undisputed); and any of Diaz’s specific gang activities.

b.Motion To Bifurcate

Plaintiffs also moved to bifurcate the liability phase from the damages phase of the trial, to avoid the risk that prejudicial information unknown to Officer Bennallack at the time of the shooting—such as Diaz’s gang membership, related photos, and drug usage—would taint the jury’s consideration of Bennallack’s use of deadly force. The district court granted this motion in part, severing punitive damages from liability and compensatory damages. The district court briefly explained that neither, prejudice nor the complexity of the issues warranted bifurcating liability from compensatory damages, and that limiting instructions would cure any potential prejudice. The record is unclear as to why the court bifurcated punitive damages but not compensatory damages.

c.Trial

After a six-day trial, the jury deliberated for less than two hours before returning a verdict that Officer Bennallack did not use excessive or unreasonable force. However, during trial—and over Plaintiffs’ repeated objections—the district court’s evidentiary-rulings strayed from its pretrial rulings. As a result, the jury was exposed to a copious amount of inflammatory and prejudicial evidence with little (if any) relevance.

i. Improper Evidence of Diaz’s Gang Membership

The most troubling evidence admitted at trial related to Diaz’s gang membership. There was wide-ranging testimony from Defendants’ gang expert, Gonzalez. There were also photographs featuring Diaz’s tattoos and him posing with guns and throwing gang signs, none of which Bennallack knew about or had seen when he shot Diaz.

In ruling on the motions in limine, the district court held that evidence of Diaz’s gang affiliation was relevant only to damages, because Officer Bennallack did not know he was a gang member. The court also specifically excluded evidence of Diaz’s gang tattoos themselves, such as photographs, because such evidence was unnecessary to establish the fact that he was a gang member. The court later recognized generally that “[p]hotographs have the potential for both relevant evidence and gratuitous provocation of the jury.”

Further, before trial the court had warned that if Diaz’s mother testified she had no knowledge of his gang affiliation, the court would revisit its ruling on the admissibility of evidence of Diaz’s tattoos. The court also noted that if Plaintiffs stipulated that Diaz- was a gang member, it would reconsider its decision regarding the testimony of the gang expert. At trial, Diaz’s mother was somewhat equivocal as to whether she knew her son was a gang member, Though Plaintiffs then offered to stipulate to his gang membership, the district court ultimately permitted the gang expert to testify, explaining that:

Given [Diaz’s mother’s] testimony, I think [the defense- is] entitled to put the gang expert on. It has got to be narrow and it’s got to be focused on his gang membership, not the activities of the gang at large. I don’t think the plaintiff at this time is entitled to basically rehabilitate the testimony and rewrite the record.

The court then ruled that Defendants could offer photographs of Diaz’s gang tattoos and him throwing gang signs, as well as other information related to his gang moniker, clothing, and association. When Plaintiffs’ counsel questioned the court’s change of heart regarding the admission of the tattoo photographs—which it had initially excluded—the court remarked, “[w]ell, I think they’re entitled to put in probative evidence. She hasn’t straight up admitted that he was a gang member; I don’t think the tattoos are inflammatory. They are what they are.” In contrast, the court excluded discussion of specific gang activities, and any additional photographs of Diaz with guns, as some already had been admitted as to liability under a “gang gun” theory. But Defendants again were permitted to present the previously admitted gun photographs to the jury—in one, Diaz held .a gun in his left hand and made a gang sign with his right. In another, he pointed a gun to his head.

The testimony of gang expert Gonzalez was highly prejudicial—so much so that the court gave the jury an early limiting instruction soon after he testified. Before giving the instruction, the district court stated in a sidebar that:

Unquestionably this gang evidence at least to his gang membership is inflammatory, and frankly the witness made it a point to expand his answers on every question. Most answers were beyond the scope of the question. Some objections were made which' I sustained; some weren’t.

The district court rightly pointed out Gonzalez’s testimony was both inflammatory and beyond the scope permitted by the court—as were some of the questions defense counsel posed.

For example, when asked “Why do gang members pose with guns?” Gonzalez responded: “It goes into their image, their persona of being a gang member, showing other gang members that they have firearms readily accessible, that they have means to commit crimes against the general public, against law enforcement, against rival gang members.” (emphasis added). When asked “Why do gang members wear baggy T-shirts?” he responded in part: “Another reason that I have come to learn about is that it helps conceal items like firearms, other deadly weapons. It’s easier to put a rifle or a sawed-off shotgun down your-shorts or your pants when you’ve got baggy pants on and a baggy shirt.” Gonzalez also was permitted to testify to several things which the court originally had excluded as unduly prejudicial under Rule 403 during the motions in limine, including that Anna Drive was part of the gang’s turf and gang activities in general. He further testified about Diaz’s gang moniker—“Stomper”—and then repeatedly used the moniker to refer to Diaz. The jury also learned that Gonzalez personally had arrested Diaz on a prior occasion.

Some of Gonzalez’s testimony was formally “stricken”’ from the record. The following pattern arose: after improper testimony, Plaintiffs’ counsel would move to strike the testimony and the district court would state “stricken” or “the last part of the answer will be stricken.” During one stretch, this pattern occurred on five different occasions in seven minutes. Gonzalez was neither warned nor reprimanded, save for the district court directing him at the very end of his testimony to “[pjlease just answer the questions asked.”

In summary, Gonzalez’s testimony did not hew to the district court’s direction to be “narrow” and “focused on his gang membership, not the activities of the gang at large.” Instead, Gonzalez took every opportunity to opine on matters squarely forbidden by the court’s previous rulings. As a result, the jury was exposed to inflammatory testimony that was wholly irrelevant to liability, and of limited relevance even as to damages.

ii. Improper Evidence of Diaz’s Drug Use

Further, despite its original hesitation, the district court ultimately ruled that the toxicology evidence was relevant to damages, and Defendants proceeded to similarly stretch this ruling. In contrast, the court found that the toxicology evidence was not relevant to § 1983 liability, as Officer Bennallack did not know or suspect that Diaz was under the influence of drugs at the time of the incident.

But beyond any marginal relevance of Diaz’s drug use to damages—again, because it supposedly undermined his mother’s claim that she loved her son—the evidence at trial fixated on his drug use on the day of the incident and how it may have affected his behavior, which had no relevance to his mother’s loss. Indeed, the singular focus of the drug-use testimony was Diaz’s toxicological status on the day he was shot, a risk which the district court recognized when it first ruled on the issue pretrial. At the time, the court “rejected] the contention that drug intoxication on the date of the incident goes to damages. At most, it establishes his condition on just one day. Any further inference would be unsupported and unduly prejudicial.”

To this end, Defendants’ toxicology expert, Dr. Clark, discussed the high levels of methamphetamine in Diaz’s blood when he died, and opined that he was intoxicated when he was shot:

Those levels—actually there are some people who die with levels that high, but not in this case. And those levels are actually quite high as far as what we would think of as recreational use of methamphetamine. But those levels are high enough since we aren’t certain of his tolerance to the drug that we can say he was without a doubt under the influence at the time of his death[.]

Dr. Clark also described the behavioral effects of methamphetamine use and how it may have affected Diaz’s behavior on July 21:

We know methamphetamines can be dangerous, and we know it affects people different ways. It can cause euphoria. It can cause hallucinations. It can cause people to become paranoid, can cause them to become violent; and it can cause them to use poor judgment. That’s pretty much common knowledge.
From my review of the facts in this case, it’s possible that methamphetamine at the levels of which were measured at autopsy could have caused Mr. Diaz to use poor judgment in what ended up happening in this case.

While the court granted Plaintiffs’ motion to strike the second part of the response as lacking medical probability, the jury already had been exposed to this testimony. This was also the second time a defense expert improperly speculated as to how drug use may have affected Diaz’s judgment the day of the shooting. Even after his earlier testimony was ."stricken,” Dr. Clark continued to focus on the day of the incident. He testified that Diaz had likely ingested methamphetamine within six hours of the shooting, and concluded “to a reasonable medical probability” that “[Diaz] was under the influence of methamphetamine at the time [of the shooting].”

II. DISCUSSION

A. The Trial Court Erred in Failing To Bifurcate Liability from Compensatory Damages

Judges have wide latitude in conducting their trials, and for good reason. See, e.g., Zivkovic v. S. Cal. Edison Co., 302 F.3d 1080, 1088 (9th Cir. 2002). This is why the rules permit bifurcation, and why we usually affirm a trial judge’s decision—to either bifurcate or keep things together—as within her discretion. But this discretion is not limitless.

a. Standard of Review

We review for abuse of discretion the district court’s rulings on whether to bifurcate a trial. Exxon Co. v. Sofec, Inc., 54 F.3d 570, 575 (9th Cir. 1995). Under this standard, we reverse only when we are “convinced firmly that the reviewed decision lies beyond the pale of reasonable justification under the circumstances.” Harman v. Apfel, 211 F.3d 1172, 1175 (9th Cir. 2000).

Federal Rule of Civil Procedure 42(b) permits a court to order a separate trial of separate claims or issues “[f]or convenience, to avoid prejudice, or to expedite and economize.” A court might bifurcate a trial to “avoid[ ] a difficult question by first dealing with an easier, dispositive issue,” Danjaq LLC v. Sony Corp., 263 F.3d 942, 961 (9th Cir. 2001), or to. avoid the risk of prejudice. See Quintanilla v. City of Downey, 84 F.3d 353, 356 (9th Cir. 1996) (explaining that, in a § 1983 case challenging the use of a police dog during a search, the trial court bifurcated the trial of the individual officers from that of the city in part to avoid prejudice). Further, “[i]t is clear that' Rule 42(b) gives courts the authority to separate trials into liability and damage phases.” De Anda v. City of Long Beach, 7 F.3d 1418, 1421 (9th Cir. 1993); see also 9A Charles A. Wright & Arthur R. Miller, Federal Practice & Procedure § 2390 (3d ed. 2016) (“The separation of issues of liability from those relating to damages is an obvious use for Federal Rule 42(b).”).

b. Discussion

Here, under the guise of impeaching Huizar’s testimony that she loved her son, Defendants introduced (over repeated objection) photographs of Diaz posing with firearms and making gang signs. Then Gonzalez expounded on the activities and customs of violent, gangs and described Diaz’s moniker of “Stomper,” his criminal history, and his tattoos in great detail. Dr. Clark speculated as to how the enormously high level of methamphetamine in Diaz’s system at the time of the shooting may have affected his response to the police. It is hard to see how most of this testimony was relevant even to damages, absent testimony—of which there was none—that Ms. Huizar knew of the photographs, gang signs, and drug use on the day of the offense, and that that knowledge undermined the emotional impact of her son’s death. And there was also highly prejudicial testimony that was under any circumstances not relevant to liability or damages. For example, Gonzalez stated that gang members require access to firearms to “use them in self-defense ..'. against police officers” and pose with firearms publicly to show “that they have means to commit crimes ...' against law enforcement.”

This was simply overkill. Considering that the parties and district court had repeated trouble tracking precisely why this prejudicial evidence was admissible for any purpose, no jury could properly compartmentalize it. For example, on the fourth day of trial, the court and parties were still not clear about whether the fact that Diaz was under the influence of drugs was relevant to liability under a comparative fault defense, even after Plaintiffs had dropped their negligence claim. Even assuming that a portion of this evidence had some relevance to damages, it never should have been combined with the liability phase.

Indeed, this court has recognized time and time again that gang evidence has the potential to be particularly prejudicial. See, e.g., Kennedy v. Lockyer, 379 F.3d 1041, 1055 (9th Cir. 2004) (“Our cases make it clear that evidence relating to gang involvement will almost always be prejudicial.]”); United States v. Takahashi, 205 F.3d 1161, 1165 (9th Cir. 2000) (holding the district court did not abuse its discretion in admitting evidence of gang membership where the court “recognized the need to prevent- undue prejudice,” gave a limiting instruction, excluded photographs of gang tattoos as evidence of membership, and minimized repetition of the gang’s name).

Similarly, even if evidence of Diaz’s drug use were relevant to damages, the form and nature of the evidence presented regarding his drug use on the day of the incident was unduly prejudicial in light of the decision not to bifurcate. It would have been far more relevant to damages for an expert to testify simply to the presence of drugs in Diaz’s body and to the effects of drug use on relationships. The focus on the day of the incident was minimally probative of damages, and was highly likely to influence improperly the jury’s evaluation of Officer Bennallack’s use of force, when he never suggested he thought Diaz may have been intoxicated.

Further, the district court already had bifurcated punitive damages. Bifurcating from the liability phase the testimony actually relevant to compensatory damages would have cost little, if any, court time— none, if the jury had returned a defense verdict.

Because -the district court abused its discretion in refusing to bifurcate the .compensatory damages phase (thereby allowing in this unduly prejudicial evidence of drugs and gangs), we reverse. Under these circumstances, the court’s bifurcation ruling was “beyond the pale of reasonable justification under the circumstances.” Apfel, 211 F.3d at 1175. To be clear, we are not announcing a rule that requires district courts always, usually,' or frequently to bifurcate damages from liability. District courts still have-the broad discretion to make these decisions. But where, as here, graphic and prejudicial evidence about the victim has little, and in large part no, relevance to the liability issue, district courts should bifurcate to avoid situations like the one before us.

In light of our decision to reverse the judgment and remand for a new trial, we also provide some guidance to the district court.

First, the evidence of Diaz’s drug use and gang affiliation has marginal, if any, probative value as to damages, and none as to liability. On retrial, the district court should closely review this evidence under Federal Rules of Evidence 401 and 403, and should assure that such evidence is admitted only to the degree that the testimony is connected up with Ms. Huizar’s reaction to her son’s death.

Second, if Plaintiffs are willing to stipulate that Diaz was a gang member (which they claim they tried to do during trial), no expert testimony about gangs—such as gang activities, - tattoos, or monikers— should be admitted. Bennallack can certainly testify as to his knowledge about gang-activity in the area. See Graham v. Connor, 490 U.S. 386, 397; 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989) (holding that to determine whether police force is excessive, the proper inquiry is “whether the officers’ actions are ‘objectively reasonable’ in light of the facts and circumstances confronting them”).

Third, while there is a “strong presumption that jurors follow instructions,” a limiting instruction may not sufficiently mitigate the prejudicial impact’ of evidence in all cases. See Miller v. City of Los Angeles, 661 F.3d 1024, 1030 (9th Cir. 2011); Bayramoglu v. Estelle, 806 F.2d 880, 888 (9th Cir. 1986) (“A timely instruction from the judge usually cures the prejudicial impact of evidence unless it is highly prejudicial ’or the instruction is clearly inadequate.” (quoting United States v. Berry, 627 F.2d 193, 198 (9th Cir. 1980))). The Advisory Committee Note to Federal Rule of Evidence 403 also recognizes the potential inadequacies of a limiting instruction, counseling that “[i]n reaching a decision whether to exclude on grounds of unfair prejudice, consideration should be given to the probable effectiveness or lack of effectiveness of a limiting instruction.” And if a limiting instruction was considered sufficient’ to cure all prejudice, there would be no need ever to bifurcate to avoid prejudice in other cases; yet in the civil rights context, courts often bifurcate the trials of individual officers from municipalities to avoid such prejudice. See, e.g., Quintanilla, 84 F.3d at 356 (“The district court ... in the interest not only of convenience and judicial economy but also the avoidance of potential prejudice and confusion, bifurcated the trial of the individual police officers from the Chief and city.”); Green v. Baca, 226 F.R.D. 624, 633 (C.D. Cal. 2005) (“Bifurcation is appropriate ... to protect the individual officer defendants from the prejudice that might result if a jury heard evidence regarding the municipal defendant’s allegedly unconstitutional policies.”).

And fourth,,if the district court is going to sustain an objection and grant a motion to strike, merely saying “stricken” does not sufficiently inform the jury about the proper use of the evidence' it just heard. When striking testimony, the court should clearly identify what testimony was improperly given, and should instruct the jury that it. may not be considered. It should also use a sidebar or brief recess to warn the witnesses and attorneys that, further attempts to . push the envelope could lead to greater sanctions, such as exclusion of testimony or a negative instruction. After all,, lawyers and witnesses, like misbehaving children or rattled basketball players, sometimes need a timeout.

B. The Trial Court Did Not Err in Ruling Force Was Not Excessive as a Matter of Law

Plaintiffs also appeal the district court’s denial of their motion for judgment as a matter of law on their excessive force claim. Because the district court correctly ruled that this question was one for the jury, we affirm its denial of Plaintiffs’ motion.

a. Standard Of Review

“We review de novo the district court’s denial of a Rule 50(b) renewed motion for judgment as a matter of law. The test is whether ‘the evidence, construed in the light most favorable to the nonmoving party, permits only one reasonable conclusion, and that conclusion is contrary to that of the jury.’ ” White v. Ford Motor Co., 312 F.3d 998, 1010 (9th Cir. 2002), amended on denial of reh’g, 335 F.3d 833 (9th Cir. 2003) (footnote omitted) (quoting Forrett v. Richardson, 112 F.3d 416, 419 (9th Cir. 1997)). We “may not make credibility determinations or weigh the evidence.” Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000).

Where an “excessive force claim arises in the context of an arrest or investigatory stop of a free citizen, it is most properly characterized as one invoking the protections of the Fourth Amendment.” Graham, 490 U.S. at 394, 109 S.Ct. 1865. As with other Fourth Amendment claims, we inquire “whether the officers’ actions are ‘objectively reasonable’ in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation.” Id. at 397, 109 S.Ct. 1865.

We determine whether challenged state actions are objectively reasonable by balancing “ ‘the nature and quality of the intrusion on the individual’s Fourth Amendment interests’ against the countervailing governmental interests at stake.” Id. at 396, 109 S.Ct. 1865 (quoting Tennessee v. Garner, 471 U.S. 1, 8, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985)). This demands a “fact-intensive inquiry requiring attention to all circumstances pertinent to the need for the force used.” Velazquez, 793 F.3d at 1024. We “first consider[ ] the nature and quality of the alleged intrusion; we then consider the governmental interests at stake by looking at (1) how severe the crime at issue is, (2) whether the suspect posed an immediate threat to the safety of the officers or others, and (3) whether the suspect was actively resisting arrest or attempting to evade arrest by flight.” Mattos v. Agarano, 661 F.3d 433, 441 (9th Cir. 2011) (en banc) (citing Deorle v. Rutherford, 272 F.3d 1272, 1279-80 (9th Cir. 2001)). These factors are not exclusive. Id.

b. Discussion

Here, while Plaintiffs presented substantial evidence that the force was unreasonable, Defendants also presented substantial evidence to support their position. When each of the Graham factors is analyzed, the record does not “permit[ ] only one reasonable conclusion ... contrary to that of the jury.” White, 312 F.3d at 1010 (citation omitted).

i. Severity of the Crime or Other Circumstances to Which the Officers Were Responding

It is undisputed that the only crime Diaz had committed, if any, was a misdemeanor, and that Officer Bennallack had no information that a crime was reported in the area. However, Bennallack was aware of an ongoing criminal investigation in the area involving the sale and possession of firearms by the East Side Anaheim Gang, and believed Diaz to be a gang member.

ii. Immediate Threat To Officer Safety

While Officer Bennallack testified. that he never saw Diaz’s hands, or a weapon on his person, certain indicia could have led a reasonable officer to believe Diaz was armed. For example, Bennallack observed that rather than pumping his arms as he ran, Diaz was “reaching towards his waistband” and appeared to be manipulating an object with his hands. Bennallack also testified that Diaz looked back at the officers multiple times, as if to acquire a target. Finally, instead of running through a gate that led to the street, Diaz led the officers into a fenced-in area, and Bennallack observed Diaz begin to slow down, assume a “low-ready” position, and turn towards him.

On the other hand, in addition to the fact that Bennallack never saw Diaz’s hands or a weapon on his person, other evidence weighs against an immediate threat to officer safety. For example, Diaz was shot in the back, which could refute Bennallack’s testimony that he was turning. While the jury was entitled to weigh this evidence and Bennallack’s credibility against other evidence and the credibility of witnesses who offered alternative versions of events, we must view the evidence in the light most favorable to Defendants.

Certainly “a simple statement by an officer that he fears for his safety or the safety of others is not enough.” Deorle, 272 F.3d at 1281. Nevertheless, Defendants presented facts demonstrating why such fear could have been reasonable here, including observations of Diaz’s movements, flight route, the presence of gang activity in the area, and his refusal to comply with the officers’ orders. Cf. id. (explaining that the officer using force knew the plaintiff “had discarded his crossbow following [the officer’s] instructions to do so, and carried only a bottle or a can with him at the time he was shot”). Even if Bennallack’s subjective fear is discounted, much of his testimony focused on observations during the encounter and how he interpreted the situation based on his training, which the jury could reasonably credit.

iii. Attempting To Evade Arrest by Flight

It is undisputed that Diaz was running from the officers and did not obey their commands to stop, put his hands up, or get on the ground. That Diaz was slowing down at the time of the shooting does not compel the conclusion that he was complying with the officers’ orders, nor does it prove that he was preparing to shoot the officers. These are both reasonable interpretations of the evidence. The jury was entitled to choose between them based on their weighing of the evidence and the witnesses’ credibility.

In sum, taking the evidence in the light most favorable to Defendants, these facts do not warrant judgment for Plaintiffs as a matter of law.

III. CONCLUSION

Police shootings are often the most difficult—and divisive—cases that our legal system and society encounter. Wrapped in strong emotion and often opaque case law, they can perplex even our most experienced trial judges, like the judge in this case. To avoid the runaway case—like this one, where the Defendants and their witnesses repeatedly overstepped the judge’s rulings—courts should use bifurcation to corral lawyers and witnesses, so the jury hears only evidence relevant to the issues at hand. Here, that was whether Officer Bennallack acted lawfully when he shot Diaz. Because the jury heard considerable and inflammatory evidence that had nothing to do with that question, we REVERSE and REMAND this case for a new trial.

      . Bennallack did not recall whether that gate was open, closed, or ajar.

      . Plaintiffs filed suit in California Superior Court, and Defendants removed the action to the District Court for the Central District of California.

      . During trial, Plaintiffs withdrew their Fourteenth Amendment claim. The district court refused to submit the unreasonable detention claim to the jury because it lacked sufficient evidence.

      . The parties agreed that the jury finding regarding excessive force would also be disposi-tive of the state battery claim,

      . She testified as follows:
      Q: Do you acknowledge that your son was a member of the East Side Anaheim street gang?
      A: I have come to find out more after his death. I loved my son, and maybe I didn’t know a lot about him during those times. It doesn’t mean I didn’t love him any'less.
      Q; No one is disputing that, Ms. Huizar, Are you indicating you did not know at . that time that he was a member of the East Side Anaheim street gang?
      A: I’m not sure how to answer because I never thought of him as a gang member.

      . Defendants’ explanation for why no firearm was found at the scene was that Diaz was armed with a shared “gang gun” that a fellow gang member retrieved and removed after the shooting. As such, the court admitted photographs of Diaz posing with guns two days before the shooting, ostensibly under the auspices of Boyd. See 576 F.3d at 944 ("In a case such as this, where what the officer perceived just prior to the use of force is in dispute, evidence that may support one version of events over another is relevant and admissible.”). As Officer Bennallack never saw a gun, we have reservations about the admissibility of this evidence even as to liability. But we need not reach this question, as Plaintiffs have not meaningfully raised the issue on appeal and we reverse on bifurcation grounds.

      . Several questions were so irrelevant to establishing gang membership or the gang gun theory that the district court sustained Plaintiffs’ objections before Gonzalez could answer. For example, defense counsel asked, “why do gang members post their photo- ' graphs on Facebook?” and “what’s the significance of gang members associating with one another?”

      . The timing and rationale underlying the court’s final ruling is not evident from the record on appeal. Defendants had argued that Diaz’s drug use was relevant to Ms, Huizar’s claim for the loss of her relationship with her son, particularly in light of her testimony that Diaz was often not permitted to live with her and her husband in part because he did not follow their rule banning drug use.

      . This testimony was ostensibly "stricken” from the record as described above.

      . Prior to Dr. Clark’s testimony—and outside the presence of the jury—Plaintiffs’ counsel inquired as to the relevance of his testimony, in light of the fact that they had dropped the negligence claim. Defendants argued that the toxicology evidence went not only to damages but also to liability (as relevant to a comparative fault defense), and the court remarked that ”[w]e need to sort that issue out,” No further discussion occurred before Dr. Clark testified, though the court ultimately gave a limiting instruction that Diaz:s drug use was relevant only to damages.

      . In urging en banc review, amici curiae California Police Chiefs' Association et al. argue that' our decision conflicts with Boyd, which upheld a district court’s decision to admit drug usage evidence to corroborate the police officers’ testimony that the decedent was acting erratically. Boyd, 576 F.3d at 943-45. Yet here, the'district court exercised its discretion and prohibited the introduction of Diaz’s drug use for liability purposes because there was no evidence that Diaz was acting erratically. See supra at 597. Diaz’s drug usage .was only admissible to undermine any damages award. See supra at 599-601. The officers did not appeal that ruling, and do not cite Boyd as an alternative means to affirm the judgment. Simply'put, the Boyd argument that amici now raise is not an issue in this appeal.

      . In light of our ruling, we do not reach the issue of whether Plaintiffs’ failure to make a Rule 50(a) motion as to the unlawful detention claim barred review of the district court's dismissal of that claim sua sponte before the close of evidence. We do observe, however, that requiring a litigant to make a Rule 50(a) motion for judgment as a matter of law on a claim no longer before the jury appears, at first blush, futile. See Velazquez v. City of Long Beach, 793 F.3d 1010, 1018 (9th Cir. 2015) ("A motion for, judgment as a matter of law may be granted if ‘the court finds that a reasonable jury would not have a legally sufficient evidentiary .basis to find for the party on that issue[.]' ” (quoting Fed. R. Civ. P. 50(a))). We also do not reach whether Plaintiffs are entitled to a new trial under Rule 59(a) based on the district court’s evidentiary rulings or formulation of jury instructions.

      . See, e.g., Barnett v. Norman, 782 F.3d 417, 422-23 (9th Cir. 2015) (outlining powers of district judge to ensure witness complies with court order); United States v. Panza, 612 F.2d 432, 439 (9th Cir. 1979) ("We can only speculate as to the effect on the jury of the striking of the testimony.” (citing United States v. Cardillo, 316 F.2d 606, 612 n.3 (2d Cir. 1963))); Cardillo, 316 F.2d at 612 n.3 ("The effectiveness of such procedures after the testimony has been heard by the jury has been the subject of speculation, metaphysical and otherwise, by jurists and trial lawyers for generations.”).

      . Cf. United States v. McKoy, 771 F.2d 1207, 1213 (9th Cir. 1985) ("We have often noted that the trial court may be able to ‘neutralize’ the effect of improper prosecutorial remarks by admonishing counsel to refrain from such remarks or by giving appropriate curative instructions to the jury,”),