Aguilar-Manzo v. Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 19, 2023
• Docket: 22-54
• Status: Unpublished

Opinion

Case: 22-54, 04/19/2023, DktEntry: 31.1, Page 1 of 3

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 19 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

MAXIMILIANO AGUILAR-MANZO, No. 22-54

Petitioner, Agency No. A200-242-893

v. MEMORANDUM* MERRICK B. GARLAND, Attorney General,

Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals

Submitted April 14, 2023** San Francisco, California

Before: S.R. THOMAS and H.A. THOMAS, Circuit Judges, and RAKOFF***, District Judge.

Maximiliano Aguilar-Manzo petitions for review of an order of the Board

of Immigration Appeals (BIA). That order denied Aguilar-Manzo’s motion to

reconsider the BIA’s dismissal of his appeal of an immigration judge’s denial of

* 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 Jed S. Rakoff, United States District Judge for the Southern District of New York, sitting by designation. Case: 22-54, 04/19/2023, DktEntry: 31.1, Page 2 of 3

his motion to reopen. We have jurisdiction under 8 U.S.C. § 1252. We review

the denial of a motion to reconsider “for an abuse of discretion, reversing when

the denial is arbitrary, irrational, or contrary to law.” Lona v. Barr, 958 F.3d

1225, 1229 (9th Cir. 2020) (cleaned up). We deny in part and grant in part the

petition for review, and remand to the BIA to consider the factors favoring

Aguilar-Manzo’s petition.

1. The BIA abused its discretion by failing to “proper[ly]

consider[]. . . all factors, both favorable and unfavorable,” when it reviewed

Aguilar-Manzo’s motion for reconsideration. Ali v. Holder, 637 F.3d 1025,

1032 (9th Cir. 2011) (citing Franco-Rosendo v. Gonzales, 454 F.3d 965, 967–

68 (9th Cir. 2006)). The BIA concluded that Aguilar-Manzo “affirmatively

waived the opportunity to apply for cancellation of removal” because he

“withdrew his applications for relief.” But the agency erred when it failed to

consider Aguilar-Manzo’s contention that he withdrew his applications because

he was under the mistaken impression that he had insufficient evidence of his

continuous physical presence to qualify for cancellation of removal.1

The BIA also concluded that Aguilar-Manzo was statutorily ineligible for

cancellation of removal because he “did not comply with the voluntary

departure order.” But it failed to address whether Aguilar-Manzo’s motion to

1 At the time, Pereira v. Sessions, 138 S. Ct. 2105 (2018), had not yet clarified that a defective Notice to Appear does not trigger the stop-time rule for accrual of continuous physical presence.

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reopen was filed “prior to the expiration of the period allowed for voluntary

departure” such that it “terminat[ed] the grant of voluntary departure.” 8 C.F.R.

§ 1240.26(e)(1). In particular, the BIA failed to consider a declaration from

Aguilar-Manzo’s counsel attesting, under penalty of perjury, to an attempt to

file Aguilar-Manzo’s motion for reopening prior to the termination of Aguilar-

Manzo’s period for voluntary departure.

The Government argues that Aguilar-Manzo has waived any challenge to

the BIA’s denial of his motion to reconsider. But Aguilar-Manzo’s brief

specifically asserts that the withdrawal of his cancellation of removal

application and his failure to voluntarily depart—both of which the BIA relied

upon as bases for denying his motion for reconsideration—occurred because the

Supreme Court had not yet clarified the effect of a deficient Notice to Appear

on the stop-time rule for cancellation of removal. Accordingly, Aguilar-

Manzo’s challenge is not waived. Cf. Arpin v. Santa Clara Valley Transp.

Agency, 261 F.3d 912, 919 (9th Cir. 2001) (“[I]ssues which are not specifically

and distinctly argued and raised in a party’s opening brief are waived.”).

2. The BIA did not err in rejecting Aguilar-Manzo’s jurisdictional

argument, which, in any event, has been forfeited. See id.; see also United

States v. Bastide-Hernandez, 39 F.4th 1187, 1188 (9th Cir. 2022) (en banc)

(“[T]he failure of [a Notice to Appear] to include time and date information

does not deprive the immigration court of subject matter jurisdiction . . . .”).

PETITION DENIED IN PART; GRANTED IN PART.

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