Priscilliano Avalos-Suarez v. Matthew Whitaker ( 2018 )

NOT FOR PUBLICATION FILED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
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warrant sua sponte reopening.
REMANDED.
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