Ibeth Corral v. William Barr ( 2020 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAY 11 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
IBETH C. CORRAL, AKA Ibeth Christina No. 18-70985
Corral,
Agency No. A095-343-778
Petitioner,
v. MEMORANDUM*
WILLIAM P. BARR, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted May 6, 2020**
Before: BERZON, N.R. SMITH, and MILLER, Circuit Judges.
Ibeth C. Corral, a native and citizen of Mexico, petitions for review of the
Board of Immigration Appeals’ (“BIA”) order denying her motion to reopen her
proceedings. Our jurisdiction is governed by 8 U.S.C. § 1252. We review for
abuse of discretion the denial of a motion to reopen, and we review de novo
*
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).
questions of law. Bonilla v. Lynch, 840 F.3d 575, 581 (9th Cir. 2016). We deny in
part and grant in part the petition for review.
The BIA did not abuse its discretion in denying the motion to reopen as
untimely. See 8 C.F.R. § 1003.2(c)(2)-(3).
In reviewing the BIA’s decision not to reopen Corral’s proceedings sua
sponte, our jurisdiction is limited to “reviewing the reasoning behind the decision[]
for legal or constitutional error.” Bonilla, 840 F.3d at 588. It appears the BIA
erred in concluding Corral was statutorily ineligible for cancellation of removal
based on her failure to comply with her grant of voluntary departure, where her
prior petition for review would have automatically terminated her grant of
voluntary departure. See Garfias-Rodriguez v. Holder, 702 F.3d 504, 523-25 (9th
Cir. 2012) (recognizing that 8 C.F.R. § 1240.26(i) automatically terminates a grant
of voluntary departure when an alien files a petition for review); 8 C.F.R.
§ 1240.26(i) (stating “the penalties for failure to depart voluntarily . . . shall not
apply to an alien who files a petition for review”). We remand for the BIA to
consider whether it erred as to Corral’s eligibility, and if so, to reassess Corral’s
request for sua sponte reopening. See Bonilla, 840 F.3d at 588 (“If, upon exercise
of its jurisdiction, this court concludes that the Board relied on an incorrect legal
premise, it should remand to the BIA so it may exercise its authority against the
correct legal background.” (citation and internal quotation marks omitted)).
2 18-70985
The government must bear the costs for this petition for review.
PETITION FOR REVIEW DENIED in part; GRANTED in part;
REMANDED.
3 18-70985