Marroquin Blanco v. Garland ( 2023 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS APR 20 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
Oscar Leonel Marroquin Blanco, No. 21-450
Petitioner, Agency No. A027-529-909
v.
MEMORANDUM*
Merrick B. Garland, U.S. Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted March 16, 2023
Pasadena, California
Before: PAEZ, CHRISTEN, and MILLER, Circuit Judges.
Petitioner Oscar Leonel Marroquin Blanco, a native and citizen of
Guatemala, seeks review of a 2021 Board of Immigration Appeals (BIA)
decision dismissing his appeal of an Immigration Judge’s (IJ’s) 2020 order
denying Marroquin Blanco’s claims for asylum, withholding of removal, and
relief pursuant to the Convention Against Torture (CAT), as well as special rule
cancellation pursuant to Section 203 of the Nicaraguan Adjustment and Central
*
This disposition is not appropriate for publication and is not
precedent except as provided by Ninth Circuit Rule 36–3.
American Relief Act (NACARA). Marroquin Blanco seeks review of the
NACARA decision only. We have jurisdiction pursuant to 8 U.S.C. § 1252,
and we grant in part and dismiss in part.
We exercise jurisdiction over NACARA claims only to the extent they
raise colorable constitutional or legal issues, which we review de novo. See Roy
v. Barr, 960 F.3d 1175, 1181 (9th Cir. 2020); Monroy v. Lynch, 821 F.3d 1175,
1177 (9th Cir. 2016). We lack jurisdiction to review predicate factual findings
underlying the agency’s determination of eligibility for NACARA relief. Ixcot
v. Holder, 646 F.3d 1202, 1213–14 (9th Cir. 2011). Even for forms of relief
committed to the agency’s discretion, the BIA is not free to ignore arguments
raised by a petitioner, and “errs if it ignores material issues or arguments raised
on appeal.” Zamorano v. Garland, 2 F.4th 1213, 1228 (9th Cir. 2021); see also
Honcharov v. Barr, 924 F.3d 1293, 1296 n.2 (9th Cir. 2019) (per curiam). If we
conclude that “the Board relied on an incorrect legal premise” in declining to
exercise its sua sponte authority to reopen proceedings, we “remand to the BIA
so it may exercise its authority against the correct legal background.” Bonilla v.
Lynch, 840 F.3d 575, 588 (9th Cir. 2016) (internal quotation marks and citation
omitted).
On appeal, Marroquin Blanco argues the Board legally erred in denying
his request for special cancellation under NACARA. In 2020, an IJ determined
that she lacked jurisdiction to hear Marroquin Blanco’s NACARA claim on two
grounds: (1) his application was not “pending adjudication by the service,” and
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(2) he had already filed a motion to reopen. Reviewing this decision in 2021,
the BIA agreed with the IJ’s first conclusion that she lacked jurisdiction because
Marroquin Blanco’s application was no longer pending. Although the
government initially defended this ground, it has subsequently disavowed the
argument that a non-citizen’s asylum application must be “pending adjudication
by the Service” to qualify for NACARA relief. We observe that the BIA
appears to have misread 8 C.F.R. § 1240.60’s definition of the phrase “asylum
application pending adjudication by the Service,” as instead defining “asylum
application” generally. We agree with Marroquin Blanco that this ground does
not support the BIA’s decision.
As to the IJ’s second ground, the BIA observed that NACARA Section
203(c) allowed Marroquin Blanco “to file one motion to reopen,” and that he
had “already attempted” to do so in 1998. The BIA also explained that it was
“not persuaded by [Marroquin Blanco’s] arguments that a motion to reopen
filed with the wrong court should not be considered a denial on the merits.”
Marroquin Blanco argues that this conclusion was legally erroneous because his
1998 motion to reopen was never adjudicated on the merits.
The record shows that Marroquin Blanco first applied for NACARA
relief in a 1998 motion to reopen filed in El Paso, which was denied in 1999
based on the IJ’s conclusion that the court lacked “jurisdiction and authority” to
adjudicate the motion because Marroquin Blanco had left the United
States. While his appeal was pending before the BIA, Congress passed the
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LIFE Act Amendments, eliminating the grounds upon which the IJ had relied
and specifically allowing aliens who had been barred from applying for
NACARA special rule cancellation because they had been deported and re-
entered the United States to retain their eligibility for that relief. See Pub. L.
No. 106–554, § 1505(a)(1), 114 Stat. 2763, 2763A-326 (2000) (codified at 8
U.S.C. § 1255 note).
In 2003, the BIA recognized that the LIFE Act Amendments negated the
grounds underlying the IJ’s 1999 decision, but dismissed Marroquin Blanco’s
appeal on other grounds: it concluded the immigration court in El Paso lacked
jurisdiction “to address the merits of the [NACARA] motion to reopen”
because, pursuant to 8 C.F.R. § 1003.43(h)(1), Marroquin Blanco should have
filed his application with the immigration court in Phoenix, which had “issued
the most recent administrative order” in his case. In reaching this conclusion,
the BIA mentioned neither the provisions of its regulations that required the El
Paso court transfer the misfiled 1998 application to Phoenix for adjudication,
nor 8 C.F.R. § 1003.43(h)(2), which required the BIA to remand to the
immigration court “any presently pending appeal in which the alien appears
eligible to apply for . . . cancellation of removal under . . . section 203 of
NACARA.” There is no indication that Marroquin Blanco’s application was
ever transferred to the immigration court in Phoenix. Though it is unclear why
the NACARA motion was never transferred, the government correctly observes
that any arguments challenging the 2003 BIA decision are now time-barred.
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See Stone v. INS, 514 U.S. 386, 405 (1995).
This appeal concerns the BIA’s 2021 decision affirming the IJ’s 2020
dismissal of Marroquin Blanco’s NACARA claim for lack of jurisdiction. On
appeal to the BIA, Marroquin Blanco argued he was entitled to a ruling on the
merits of his application, and he argued the 2003 BIA decision was both wrong
as a matter of law and contrary to the BIA regulations noted above. He also
requested the BIA “exercise its sua sponte authority pursuant to 8 C.F.R. §
1003.2(a) and reopen and remand its . . . 2003 decision and forward the timely
[1998] NACARA motion to reopen . . . to the Phoenix immigration court for a
proper adjudication in accordance” with the regulations. The BIA dismissed the
appeal without addressing the request for sua sponte reopening.
Marroquin Blanco contends the agency violated his due process rights by
failing to address his request for sua sponte reopening. See Menendez–
Gonzalez v. Barr, 929 F.3d 1113, 1116 (9th Cir. 2019) (describing our standard
of review when the BIA denies sua sponte reopening). We agree. Having
reviewed the complicated procedural history in this case, we conclude that the
BIA legally erred by failing to address Marroquin Blanco’s request for sua
sponte reopening in its 2021 decision. The BIA is “not free to ignore arguments
raised by a petitioner,” Sagaydak v. Gonzales, 405 F.3d 1035, 1040 (9th Cir.
2005), and the government’s counsel conceded at oral argument that the Board
had the authority to reopen its 2003 proceedings. We therefore grant this
petition for review and remand to allow the BIA to consider whether to exercise
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its sua sponte authority to reopen its 2003 proceedings.
We lack jurisdiction to consider Marroquin Blanco’s argument based on
congressional intent because he failed to exhaust that argument before the
agency. See Honcharov, 924 F.3d at 1296 n.2.
GRANTED IN PART AND DISMISSED IN PART.1
1
Costs are to be taxed against the government.
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