FILED UNITED STATES COURT OF APPEALS JUN 3 2021 FOR THE NINTH CIRCUIT MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS MARIO SANDOVAL-GOMEZ, AKA No. 10-73448 Milton Alvarado-Sandine, Agency No. A092-563-965 Petitioner, v. ORDER MERRICK B. GARLAND, Attorney General, Respondent. Before: GOULD and N.R. SMITH, Circuit Judges, and ENGLAND,* District Judge. Respondent’s Motion to Amend the Judgment is GRANTED. The prior memorandum disposition filed on May 17, 2021, is hereby amended concurrent with the filing of the amended disposition today. * The Honorable Morrison C. England, Jr., Senior United States District Judge for the Eastern District of California, sitting by designation. FILED NOT FOR PUBLICATION JUN 3 2021 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT MARIO SANDOVAL-GOMEZ, AKA No. 10-73448 Milton Alvarado-Sandine, Agency No. A092-563-965 Petitioner, v. AMENDED MEMORANDUM* MERRICK B. GARLAND, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Argued and Submitted June 3, 2014 Resubmitted May 17, 2021 Pasadena, California Before: GOULD and N.R. SMITH, Circuit Judges, and ENGLAND,** District Judge. Mario Sandoval-Gomez petitions for review of the dismissal by the Board of Immigration Appeals (“BIA”) of his appeal of the order of removal. The BIA * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Morrison C. England, Jr., Senior United States District Judge for the Eastern District of California, sitting by designation. found Sandoval-Gomez removable based on his conviction for attempted arson under California Penal Code section 455 as an aggravated felony, 8 U.S.C. § 1227(a)(2)(A)(iii). Sandoval-Gomez challenges his removal, alleging that (1) the immigration judge (“IJ”) improperly permitted the Government to lodge new charges on remand from the BIA; and (2) the BIA erred in concluding that his attempted arson conviction qualified as an aggravated felony under the federal explosives statute, 18 U.S.C. § 844.1 1. The IJ properly permitted the Government to lodge new charges. The BIA’s January 2009 remand order did not preclude the Government from pursuing new removal charges based on Sandoval-Gomez’s attempted arson conviction. The BIA vacated its prior order entirely and broadly instructed the IJ to conduct “any further proceedings the [IJ] deems appropriate.” Thus, the Government was permitted to bring additional charges.2 See Fernandes v. Holder, 619 F.3d 1069, 1074 (9th Cir. 2010) (“An articulated purpose for the remand, without any express limit on scope, is not sufficient to limit the remand such that it forecloses 1 Sandoval-Gomez was also found removable based on a controlled substance conviction. He did not challenge that conclusion. 2 Because there was no final order of removal, neither res judicata nor law of the case apply. See Bravo-Pedroza v. Gonzales, 475 F.3d 1358, 1360 (9th Cir. 2007). Further, there was no violation of the BIA’s regulations, because the case was remanded. 2 consideration of other new claims or motions that the IJ deems appropriate or that are presented in accordance with relevant …
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