Mario Perez Gonzalez v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 16, 2022
• Docket: 20-71900
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 16 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

MARIO PEREZ GONZALEZ, No. 20-71900

Petitioner, Agency No. A204-428-217

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

Respondent.

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

Argued and Submitted March 8, 2022 Pasadena, California

Before: FRIEDLAND and KOH, Circuit Judges, and KORMAN,** District Judge.

Mario Perez Gonzalez (“Petitioner”), a native and citizen of Mexico,

petitions for review of a decision of the Board of Immigration Appeals (“BIA”)

denying his motion to remand and upholding the immigration judge’s (“IJ”) denial

of his claims for withholding of removal and relief under the Convention Against

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Edward R. Korman, United States District Judge for the Eastern District of New York, sitting by designation. Torture (“CAT”). We have jurisdiction under 8 U.S.C. § 1252. We grant the

petition for review and remand to the BIA for proceedings consistent with this

disposition.

During the pendency of Petitioner’s appeal to the BIA, this court issued its

decision in Sanchez v. Sessions (“Sanchez II”), 904 F.3d 643 (9th Cir. 2018),

holding that an egregious violation of agency regulations may warrant termination

of removal proceedings even if the petitioner cannot establish prejudice in the

sense that information obtained through the egregious conduct negatively impacted

his immigration proceedings. Id. at 655. Although Petitioner had not challenged

the circumstances of his arrest by ICE agents in his removal proceedings before the

IJ, he argued on appeal to the BIA that the ICE agents who arrested him

egregiously violated agency regulations. As relevant here, he argued that his arrest

was unlawful because the ICE agents had not secured a warrant and did not

identify themselves as immigration officers by making the arrest, in violation of 8

U.S.C. § 1357(a)(2) and 8 C.F.R. § 287.8(c)(2)(ii)-(iii)(A).

The BIA declined to address Petitioner’s argument for termination,

concluding that he had waived the argument by not raising it during the initial

proceedings before the IJ. The BIA reasoned that Sanchez “did not reverse prior

circuit decisions or alter the framework governing motions to suppress in removal

proceedings” but “merely applied a settled legal principle.”

2 The BIA erred because Sanchez II was intervening authority that provided

Petitioner with a new avenue for relief. Sanchez II held, for the first time, that a

petitioner is entitled to the remedy of termination if an egregious regulatory

violation “involved conscience-shocking conduct, deprived the petitioner of

fundamental rights, or prejudiced the petitioner.” Id. at 655 (emphasis added).

Before Sanchez, Petitioner would have had to show prejudice from the regulatory

violation to obtain relief—for example, that the evidence of his alienage that ICE

agents obtained following his unlawful arrest was necessary to the Government’s

effort to remove him. See Sanchez II, 909 F.3d at 653-54. Petitioner

acknowledges that he could not have made such a showing because the

Government has an independent way of proving his alienage, based on his DACA

application and his criminal history. Accordingly, before Sanchez II, there was no

point in his challenging his unlawful arrest because there was no remedy that

would have made a difference to his case—even suppression of the evidence

obtained during the arrest would not have helped Petitioner. But, after Sanchez II,

if Petitioner could demonstrate that his arrest involved an egregious regulatory

violation, as he argues here, a court could order his removal proceedings

terminated notwithstanding the lack of prejudice.1

1 The remedy of termination was available to petitioners who could show prejudice under our court’s decision in Sanchez I—which was withdrawn on denial

3 Because Sanchez II provided Petitioner with an avenue for relief that was

previously unavailable to him, he had good cause for failing to challenge his

unlawful arrest before the IJ, and the BIA erred when it concluded that Petitioner

had waived the argument. See United States v. Aguilera-Rios, 769 F.3d 626, 631

(9th Cir. 2014) (citing In re Skywalkers, Inc., 49 F.3d 546, 548 n.4 (9th Cir. 1995))

(noting that “a change in the law during the pendency of an appeal permits

entertainment of an issue not previously raised”). We therefore remand to the BIA

to address in the first instance Petitioner’s argument that his unlawful arrest

requires termination of his removal proceedings under Sanchez II. The BIA may

decide on remand that this issue requires further factual development, and if so,

may remand to the IJ for that purpose.

At this stage, we need not and do not reach the merits of Petitioner’s claims

for withholding of removal and CAT relief.

PETITION GRANTED AND REMANDED.

of rehearing en banc two days after the IJ ordered Petitioner removed. But it was not until Sanchez II—issued during the pendency of Petitioner’s appeal to the BIA—that we held that termination was available not only for prejudicial regulatory violations (or for regulatory violations that also violate the Constitution, where prejudice is presumed), but also for non-prejudicial egregious regulatory violations. See Sanchez v. Sessions (“Sanchez I”), 870 F.3d 901, 911-13 (9th Cir. 2017), withdrawn on denial of reh’g en banc by 895 F.3d 1101 (9th Cir. 2018), and superseded by Sanchez II, 904 F.3d 643 (9th Cir. 2018). It is this innovation from Sanchez II on which Petitioner relies.