NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUL 26 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT ALFREDO SANTOS-BAUTISTA, No. 21-744 Agency No. Petitioner, A201-945-296 v. MEMORANDUM* MERRICK B. GARLAND, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted July 17, 2023** San Francisco, California Before: WARDLAW and M. SMITH, Circuit Judges, and RAYES, *** District Judge. Alfredo Santos-Bautista (Santos) appeals from a Board of Immigration Appeals (BIA) decision dismissing his appeal of an Immigration Judge’s (IJ’s) denial of motions to continue and/or administratively close proceedings. As the * 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 Douglas L. Rayes, United States District Judge for the District of Arizona, sitting by designation. parties are familiar with the facts, we do not recount them here. We grant in part and deny in part the petition for review, and remand to the BIA with instructions to adjudicate Santos’s motion for administrative closure. 1. Santos was not required to exhaust his administrative closure claim. We recognize an “exception[] to the exhaustion requirement” where a noncitizen raises a “legal issue[] based on events that occur after briefing to the BIA has been completed.” Alcaraz v. INS, 384 F.3d 1150, 1158 (9th Cir. 2004). Briefing in Santos’s appeal concluded on July 14, 2021. Just one day later, the Attorney General vacated a decision that stripped IJs and the BIA of authority to administratively close cases, see Matter of Castro-Tum, 27 I. & N. Dec. 271, 272 (AG 2018), and restored the agency’s prior guidelines for adjudicating such requests. See Matter of Cruz-Valdez, 28 I. & N. Dec. 326, 329 (AG 2021) (vacating Castro-Tum). Santos’s motion for administrative closure became viable only after the Attorney General issued Cruz-Valdez. The government concedes that, had Santos raised his administrative closure claim to the BIA, the agency would have denied the motion, consistent with then-controlling BIA precedent. Santos seeks a remedy based on a “legal issue that . . . could not be briefed on [his] direct appeal to the BIA” due to a change in agency policy that occurred “after the date when [Santos] w[as] required to submit [his] briefs to the BIA.” Alcaraz, 384 F.3d at 1159. Accordingly, Santos was not statutorily required to exhaust his claim. For the same reasons, we also reject the government’s 2 21-744 argument that prudential exhaustion requirements should be imposed in this case. See id. 2. We are not persuaded that remand to the agency to reconsider Santos’s motion for administrative closure would be futile. “Ordinarily, where both the IJ and BIA erred by not independently reviewing [a petitioner’s] administrative closure request, remand would be the appropriate remedy.” Gonzalez-Caraveo v. Sessions, 882 F.3d 885, 893 (9th Cir. 2018). Neither the IJ nor …
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