NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JAN 30 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT JUAN DE DIOS MOLINA-PENA, AKA No. 16-70399 Juan De Dios, Agency No. A092-300-354 Petitioner, v. MEMORANDUM* WILLIAM P. BARR, Attorney General, Respondent. JUAN DE DIOS MOLINA-PENA, No. 18-71633 Petitioner, Agency No. A092-300-354 v. WILLIAM P. BARR, Attorney General, Respondent. On Petitions for Review of the Orders of the Board of Immigration Appeals Argued and Submitted December 12, 2019 Seattle, Washington * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Before: GRABER and BERZON, Circuit Judges, and EZRA,** District Judge. Petitioner Juan Molina-Pena has two petitions before the court. First, he seeks review of the Board of Immigration Appeals’ (“BIA”) decision affirming the Department of Homeland Security’s final order of removal. Second, he seeks review of the BIA’s decision dismissing his appeal of the immigration judge’s (“IJ”) denial of his sua sponte motion to reopen. We grant Petitioner’s first petition and deny his second petition. 1. The BIA did not commit legal or constitutional error in its denial of petitioner’s sua sponte motion to reopen. In 2017, we remanded this petition to the BIA for the “limited purpose” of requiring the BIA to clarify its application of the “exceptional circumstances” standard to Molina-Pena’s claims so we could review for legal or constitutional error. Molina-Pena v. Sessions, 699 F. App’x 638, 638−39 (9th Cir. 2017) (unpublished). Following the remand, the BIA concluded that subsequent changes to the law’s interpretation did not render the IJ’s 1996 decision, denying the respondent’s request for § 212(c) relief, invalid or present an “exceptional situation.” As permitted by our limited scope of review, we review this statement for legal or constitutional error. Bonilla v. Lynch, 840 F.3d 575, 588 (9th Cir. 2016). We hold the BIA’s reasoning does not constitute such error and ** The Honorable David A. Ezra, United States District Judge for the District of Hawaii, sitting by designation. 2 16-70399 deny this petition for review. 2. We grant Petitioner’s petition for review of his removal petition. We remand to the BIA for reconsideration of whether Petitioner received proper notice of his right to appeal the IJ’s 1996 decision and, if not, what effect that finding has on the analysis of gross miscarriage of justice. Petitioner seeks to collaterally attack his 1996 removal order. “The BIA has consistently held that ‘an alien may collaterally attack a final order of exclusion or deportation in a subsequent deportation proceeding only if she can show that the prior order resulted in a gross miscarriage of justice.’” Vega-Anguiano v. Barr, 942 F.3d 945, 949 (9th Cir. 2019) (quoting Matter of Roman, 19 I. & N. Dec. 855, 856−57 (B.I.A. 1988)). A gross miscarriage of justice occurs when a removal order had no valid legal basis at the time of its issuance or at the time of its execution. Id. Petitioner asserts that the IJ ...
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