Granados Aranda v. Garland


NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUL 7 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT ARTURO GRANADOS ARANDA, No. 22-1200 Agency No. A095-806-826 Petitioner, v. MEMORANDUM* MERRICK B. GARLAND, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted June 16, 2023** Portland, Oregon Before: TALLMAN AND RAWLINSON, Circuit Judges, and RAKOFF,*** District Judge. In 2009, Petitioner Arturo Granados Aranda stated, through counsel, that he wished to apply for cancellation of removal. The immigration judge (“IJ”) found * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable Jed S. Rakoff, United States District Judge for the Southern District of New York, sitting by designation. Petitioner was statutorily ineligible for cancellation under 8 U.S.C. § 1229b(b) and pretermitted relief. At a May 25, 2016, hearing on Petitioner’s separate application for asylum, withholding of removal, and protection under the Convention Against Torture, counsel conceded that Petitioner was ineligible for cancellation under then- valid Ninth Circuit precedent. Accordingly, the record was not developed regarding Petitioner’s eligibility for cancellation of removal, and the IJ did not consider such relief. In 2019, Petitioner filed an untimely motion for reconsideration arguing subsequent decisions by the United States Supreme Court and by our Court undercut the legal bases for pretermitting his application for cancellation of removal. The Board of Immigration Appeals (“BIA”) construed Petitioner’s motion as one to reopen and denied it because he had failed to submit any documentation to show that he was otherwise entitled to cancellation of removal. Petitioner then sought this Court’s review. While his petition was pending, Respondent filed an unopposed motion for remand in light of Niz-Chavez v. Garland, 141 S. Ct. 1474 (2021). On remand, the BIA denied Petitioner’s motion a second time for similar reasons. Petitioner now seeks this Court’s review of that decision. Our jurisdiction is governed by 8 U.S.C. § 1252, and we deny the petition in part and dismiss the petition in part. 2 1. Petitioner argues that the BIA abused its discretion by construing his motion as one to reopen and then denying relief for failure to comply with procedures governing such motions. The BIA is generally obligated to treat a motion to reconsider as such where the motion raises purely legal issues and is not premised on new, previously undiscoverable evidence. See, e.g., Barroso v. Gonzales, 429 F.3d 1195, 1203 n.14 (9th Cir. 2005) (explaining BIA properly treated a “motion as a motion to reconsider” where the petitioner was raising a legal issue and did not support his motion with new evidence); Chudshevid v. INS, 641 F.2d 780, 784 (9th Cir. 1981) (“The motion brought in this case is not based upon any new facts which were not available at the time of the hearing …

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