NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS NOV 16 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT PRISCILLIANO AVALOS-SUAREZ, No. 16-72773 Petitioner, Agency No. A070-347-934 v. MEMORANDUM* MATTHEW G. WHITAKER, Acting Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Argued and Submitted November 8, 2018 Seattle, Washington Before: McKEOWN and FRIEDLAND, Circuit Judges, and BOLTON,** District Judge. Priscilliano Avalos-Suarez (“Avalos-Suarez”), a native and citizen of Mexico, petitions for review of the Board of Immigration Appeals’ (BIA’s) denial of his motion to reopen his 1993 deportation proceedings sua sponte. We have * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Susan R. Bolton, United States District Judge for the District of Arizona, sitting by designation. jurisdiction to review BIA “decisions denying sua sponte reopening for the limited purpose of reviewing the reasoning behind the decision[] for legal or constitutional error.” Bonilla v. Lynch, 840 F.3d 575, 588 (9th Cir. 2016). Because the BIA misinterpreted Perez-Enriquez v. Gonzales, 463 F.3d 1007 (9th Cir. 2006) (en banc), we remand to the BIA. The BIA misinterpreted Perez-Enriquez, citing it for the proposition that there was a “lack of clarity . . . in the law” about admissibility of Special Agricultural Worker (SAW) permanent residents like Avalos-Suarez at the time of his 1993 arrest and deportation. Relying on this legal uncertainty, the BIA concluded there were no egregious circumstances that would warrant reopening his 1993 deportation proceedings, during which he was not informed of his legal status. However, Perez-Enriquez supports the opposite proposition: there was legal clarity. In that case, we explained the BIA had “consistently” interpreted the law to mean that admissibility for agricultural workers under the SAW program is “determined as of the date of adjustment of status to lawful temporary resident” and “is not redetermined as of the date of automatic adjustment of status to lawful permanent resident.” Perez-Enriquez, 463 F.3d at 1014-15. Because of this misunderstanding, the BIA failed to “exercise its authority against the correct ‘legal background.’” Bonilla, 840 F.3d at 588. We remand so the BIA can address, without this legal error, whether there are exceptional circumstances to 2 warrant sua sponte reopening. REMANDED. 3 16-72773 Court of Appeals for the Ninth Circuit ca9 9th Cir. Priscilliano Avalos-Suarez v. Matthew Whitaker 16 November 2018 Agency Unpublished d69d537cbf82675812186d4b18b08edc676e654a
Original document
Source: All recent Immigration Decisions In All the U.S. Courts of Appeals