NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 2 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT SYLVIA OCAMPO-ORTIZ, No. 18-72115 19-71558 Petitioner, Agency No. A098-571-321 v. MERRICK B. GARLAND, Attorney MEMORANDUM* General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Argued and Submitted March 1, 2021 San Francisco, California Before: WARDLAW and BERZON, Circuit Judges, and CHEN,** District Judge. Silvia Ocampo-Ortiz (“Ocampo”) petitions for review of the Board of Immigration Appeals’ (“the Board’s”) denial of her motions for sua sponte reopening of her removal proceedings and for reconsideration of that denial. We have “jurisdiction to review Board decisions denying sua sponte reopening for the * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Edward M. Chen, United States District Judge for the Northern District of California, sitting by designation. limited purpose of reviewing the reasoning behind the decisions for legal or constitutional error.” Bonilla v. Lynch, 840 F.3d 575, 588 (9th Cir. 2016). Because the Board committed several legal errors in denying Ocampo’s motion to reopen, we grant the petitions for review. 1. In denying Ocampo’s motion to reopen, the Board stated that it was “not able to cancel her removal” because she was “no longer present in the United States,” having already been removed. The Board’s reasoning directly contradicts Supreme Court precedent: as long as Ocampo satisfies the “requirements of 8 U.S.C. § 1229b(a), [she] may still seek cancellation of removal even after having been removed.” Carachuri-Rosendo v. Holder, 560 U.S. 563, 573 n.8 (2010). At oral argument, the government suggested that the Board did not view Ocampo’s removal as a barrier to reopening her proceedings so that she could seek cancellation of removal, but simply as a factor the Board could consider in its exercise of discretion. But the government’s post hoc rationalization cannot be squared with the plain language of the Board’s decision—that it was “not able” to cancel Ocampo’s removal because she had already been removed. That conclusion was legal error and an invalid basis on which to deny the motion to reopen. 2. In denying Ocampo’s motion for reconsideration, the Board stated that Ocampo’s failure to object to the Board’s characterization of her motion to reopen as “time and number barred” was “sufficient reason by itself to deny her 2 motion to reconsider.” However, the Board’s decision on the motion to reopen did not state that Ocampo’s failure to comply with the timing and numerosity requirements for a motion to reopen was a reason for the denial. Instead, the Board noted in its recitation of the procedural background that Ocampo “has now filed an untimely and number barred motion to reopen on February 15, 2018.” The Board went on to deny the motion for sua sponte reopening on the erroneous basis that Ocampo had already been removed. To the degree the Board’s denial of reconsideration relied on …
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