NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS FEB 28 2025 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
RICARDO AGUILAR GARCIA, AKA Nos. 19-71917 Ricardo Aguilargarcia, 23-1536 Agency No. Petitioner, A204-909-937 v. MEMORANDUM*
PAMELA BONDI, Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration Appeals
Argued and Submitted February 6, 2025 San Francisco, California
Before: FORREST and SANCHEZ, Circuit Judges, and EZRA, District Judge. **
Petitioner Ricardo Aguilar Garcia (“Petitioner”) appeals the Board of
Immigration Appeals’ (“BIA”) decision denying his motion to suppress and
motion to reopen proceedings. “We review de novo the denial of a motion to
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable David A. Ezra, United States District Judge for the District of Hawaii, sitting by designation. suppress.” Martinez-Medina v. Holder, 673 F.3d 1029, 1033 (9th Cir. 2011)
(citation omitted). We also review constitutional and legal claims de novo. Zuniga
v. Garland, 86 F.4th 1236, 1239 (9th Cir. 2023); B.R. v. Garland, 26 F.4th 827,
835 (9th Cir. 2022). We review findings of fact under the substantial evidence
standard. Zuniga, 86 F.4th at 1239. We review the denial of a motion to reopen
for abuse of discretion. Agonafer v. Sessions, 859 F.3d 1198, 1203 (9th Cir. 2017).
“The BIA abuses its discretion when it acts arbitrarily, irrationally, or contrary to
the law, and when it fails to provide a reasoned explanation for its actions.” B.R.,
26 F.4th at 835 (citation omitted). Where the BIA cites Matter of Burbano, 20 I. &
N. Dec. 872 (BIA 1994), and also provides its own review of the evidence and the
law, we review both the immigration judge’s and the BIA’s decision. See Ruiz-
Colmenares v. Garland, 25 F.4th 742, 748 (9th Cir. 2022). We have jurisdiction
under 8 U.S.C. § 1252, and we deny the petition.
1. Petitioner, a former Deferred Entry for Childhood Arrivals (“DACA”)
recipient, was ordered removed after the Government submitted his DACA
documents as independent evidence of alienage in removal proceedings. Petitioner
argues that the use of his DACA materials1 violated 1) Department of Homeland
1 Because DACA recipients are required to apply for employment authorization, Petitioner’s work authorization request form is part of his DACA materials. Ariz. Dream Act Coal. v. Brewer, 757 F.3d 1053, 1062 (9th Cir. 2014) (“In fact, DACA recipients are required to apply for employment authorization, in keeping with the
2 23-1536 Security’s (“DHS”) information-sharing policy, 2) the injunction in CASA de
Maryland v. DHS, 284 F. Supp. 3d 758 (D. Md. 2018), and 3) the Accardi doctrine.
In implementing the DACA policy, the United States Citizenship and
Immigration Services (“USCIS”) has published “Frequently Asked Questions” on
its website. FAQ 19 states that “information provided in this request is protected
from disclosure . . . for the purposes of immigration enforcement proceedings
unless the requestor meets the criteria for the issuance of a Notice to Appear or a
referral to ICE under the criteria set forth in USCIS’s Notice to Appear guidance.”
At the time DACA was announced in 2012, the Revised Guidance for the
Referral of Cases and Issuance of Notices to Appear (NTAs) in Cases Involving
Inadmissible and Removable Aliens (“2011 NTA PM”) governed. The 2011 NTA
PM lists criminal offenses under the categories “Egregious Public Safety Cases”
and “Non-Egregious Public Safety Criminal Cases” that warrant referral to ICE
and may trigger issuance of an NTA. Under the record presented, Petitioner was
arrested and charged with driving under the influence (“DUI”) and possession of a
concealed firearm. Neither of these offenses is “egregious” under the 2011 NTA
Executive’s intention that DACA recipients remain ‘productive’ members of society.”). Therefore, the BIA’s determination that Petitioner’s work authorization application was not derived from DACA is incorrect.
3 23-1536 PM.2
For “non-egregious” offenses, USCIS refers the case to ICE only “[i]f it
appears that an alien is inadmissible or removable for a criminal offense not
included on the [egregious public safety] list.” Whether this requirement is met
depends on the Immigration and Nationality Act’s (“INA”) criteria for
inadmissibility and removability based on criminal offenses. The 2011 NTA PM
has no provision for issuance of an NTA or ICE referral where a noncitizen is
inadmissible or removable for non-criminal reasons.
The INA renders a noncitizen inadmissible for crimes involving moral
turpitude and drug offenses. See 8 U.S.C. § 1182(a)(2)(A)(i). Under this criteria,
Petitioner’s DUI and firearms charges do not trigger inadmissibility. See Ceron v.
Holder, 747 F.3d 773, 779–81 (9th Cir. 2014); Marmolejo-Campos v. Holder, 558
F.3d 903, 913 (9th Cir. 2009) (en banc). Nor does 8 U.S.C. § 1227(a)(2)(C) apply,
as there is no evidence in the record that Petitioner was convicted of a firearms
offense when the NTA issued. Thus, under the 2011 NTA PM, the Government
could not use Petitioner’s DACA materials in a removal proceeding. But that does
not end our inquiry.
In 2018, the Government issued an Updated Guidance for the Referral of
2 The Government also contends that Petitioner was arrested for domestic violence, but Petitioner disputes this claim and the record does not reliably demonstrate that he was.
4 23-1536 Cases and Issuances of Notices to Appear (NTAs) in Cases Involving Inadmissible
and Deportable Aliens (“2018 General NTA PM”). FAQ 19 does not specify
which version of the Guidance to follow. However, the 2018 General NTA PM
expressly superseded the 2011 NTA PM. Under the 2018 General NTA PM, the
criteria for issuance of an NTA or a referral to ICE based upon a non-egregious
offense was expanded. Under the revised policy, a referral to ICE or issuance of
an NTA may be made if a noncitizen is removable for any reason and “under
investigation for, has been arrested for (without disposition), or has been convicted
of any crime not listed [as an egregious public safety crime].” (emphasis added).
Petitioner met the criteria for issuance of an NTA or referral to ICE based on
his arrests and criminal charges filed for “any crime,” here his DUI and firearms
offenses. Therefore, the Government was permitted to use Petitioner’s DACA
materials in a removal proceeding under the 2018 General NTA PM.
Petitioner’s reliance on the CASA de Maryland injunction is misplaced.
That injunction required the Government to follow FAQ 19, which permits the use
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NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS FEB 28 2025 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
RICARDO AGUILAR GARCIA, AKA Nos. 19-71917 Ricardo Aguilargarcia, 23-1536 Agency No. Petitioner, A204-909-937 v. MEMORANDUM*
PAMELA BONDI, Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration Appeals
Argued and Submitted February 6, 2025 San Francisco, California
Before: FORREST and SANCHEZ, Circuit Judges, and EZRA, District Judge. **
Petitioner Ricardo Aguilar Garcia (“Petitioner”) appeals the Board of
Immigration Appeals’ (“BIA”) decision denying his motion to suppress and
motion to reopen proceedings. “We review de novo the denial of a motion to
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable David A. Ezra, United States District Judge for the District of Hawaii, sitting by designation. suppress.” Martinez-Medina v. Holder, 673 F.3d 1029, 1033 (9th Cir. 2011)
(citation omitted). We also review constitutional and legal claims de novo. Zuniga
v. Garland, 86 F.4th 1236, 1239 (9th Cir. 2023); B.R. v. Garland, 26 F.4th 827,
835 (9th Cir. 2022). We review findings of fact under the substantial evidence
standard. Zuniga, 86 F.4th at 1239. We review the denial of a motion to reopen
for abuse of discretion. Agonafer v. Sessions, 859 F.3d 1198, 1203 (9th Cir. 2017).
“The BIA abuses its discretion when it acts arbitrarily, irrationally, or contrary to
the law, and when it fails to provide a reasoned explanation for its actions.” B.R.,
26 F.4th at 835 (citation omitted). Where the BIA cites Matter of Burbano, 20 I. &
N. Dec. 872 (BIA 1994), and also provides its own review of the evidence and the
law, we review both the immigration judge’s and the BIA’s decision. See Ruiz-
Colmenares v. Garland, 25 F.4th 742, 748 (9th Cir. 2022). We have jurisdiction
under 8 U.S.C. § 1252, and we deny the petition.
1. Petitioner, a former Deferred Entry for Childhood Arrivals (“DACA”)
recipient, was ordered removed after the Government submitted his DACA
documents as independent evidence of alienage in removal proceedings. Petitioner
argues that the use of his DACA materials1 violated 1) Department of Homeland
1 Because DACA recipients are required to apply for employment authorization, Petitioner’s work authorization request form is part of his DACA materials. Ariz. Dream Act Coal. v. Brewer, 757 F.3d 1053, 1062 (9th Cir. 2014) (“In fact, DACA recipients are required to apply for employment authorization, in keeping with the
2 23-1536 Security’s (“DHS”) information-sharing policy, 2) the injunction in CASA de
Maryland v. DHS, 284 F. Supp. 3d 758 (D. Md. 2018), and 3) the Accardi doctrine.
In implementing the DACA policy, the United States Citizenship and
Immigration Services (“USCIS”) has published “Frequently Asked Questions” on
its website. FAQ 19 states that “information provided in this request is protected
from disclosure . . . for the purposes of immigration enforcement proceedings
unless the requestor meets the criteria for the issuance of a Notice to Appear or a
referral to ICE under the criteria set forth in USCIS’s Notice to Appear guidance.”
At the time DACA was announced in 2012, the Revised Guidance for the
Referral of Cases and Issuance of Notices to Appear (NTAs) in Cases Involving
Inadmissible and Removable Aliens (“2011 NTA PM”) governed. The 2011 NTA
PM lists criminal offenses under the categories “Egregious Public Safety Cases”
and “Non-Egregious Public Safety Criminal Cases” that warrant referral to ICE
and may trigger issuance of an NTA. Under the record presented, Petitioner was
arrested and charged with driving under the influence (“DUI”) and possession of a
concealed firearm. Neither of these offenses is “egregious” under the 2011 NTA
Executive’s intention that DACA recipients remain ‘productive’ members of society.”). Therefore, the BIA’s determination that Petitioner’s work authorization application was not derived from DACA is incorrect.
3 23-1536 PM.2
For “non-egregious” offenses, USCIS refers the case to ICE only “[i]f it
appears that an alien is inadmissible or removable for a criminal offense not
included on the [egregious public safety] list.” Whether this requirement is met
depends on the Immigration and Nationality Act’s (“INA”) criteria for
inadmissibility and removability based on criminal offenses. The 2011 NTA PM
has no provision for issuance of an NTA or ICE referral where a noncitizen is
inadmissible or removable for non-criminal reasons.
The INA renders a noncitizen inadmissible for crimes involving moral
turpitude and drug offenses. See 8 U.S.C. § 1182(a)(2)(A)(i). Under this criteria,
Petitioner’s DUI and firearms charges do not trigger inadmissibility. See Ceron v.
Holder, 747 F.3d 773, 779–81 (9th Cir. 2014); Marmolejo-Campos v. Holder, 558
F.3d 903, 913 (9th Cir. 2009) (en banc). Nor does 8 U.S.C. § 1227(a)(2)(C) apply,
as there is no evidence in the record that Petitioner was convicted of a firearms
offense when the NTA issued. Thus, under the 2011 NTA PM, the Government
could not use Petitioner’s DACA materials in a removal proceeding. But that does
not end our inquiry.
In 2018, the Government issued an Updated Guidance for the Referral of
2 The Government also contends that Petitioner was arrested for domestic violence, but Petitioner disputes this claim and the record does not reliably demonstrate that he was.
4 23-1536 Cases and Issuances of Notices to Appear (NTAs) in Cases Involving Inadmissible
and Deportable Aliens (“2018 General NTA PM”). FAQ 19 does not specify
which version of the Guidance to follow. However, the 2018 General NTA PM
expressly superseded the 2011 NTA PM. Under the 2018 General NTA PM, the
criteria for issuance of an NTA or a referral to ICE based upon a non-egregious
offense was expanded. Under the revised policy, a referral to ICE or issuance of
an NTA may be made if a noncitizen is removable for any reason and “under
investigation for, has been arrested for (without disposition), or has been convicted
of any crime not listed [as an egregious public safety crime].” (emphasis added).
Petitioner met the criteria for issuance of an NTA or referral to ICE based on
his arrests and criminal charges filed for “any crime,” here his DUI and firearms
offenses. Therefore, the Government was permitted to use Petitioner’s DACA
materials in a removal proceeding under the 2018 General NTA PM.
Petitioner’s reliance on the CASA de Maryland injunction is misplaced.
That injunction required the Government to follow FAQ 19, which permits the use
of DACA information in enforcement proceedings if certain criteria are met.
CASA de Maryland v. DHS, No. 17-2942, 2018 WL 8332822, at *1 (D. Md. Mar.
15, 2018). As discussed, the 2018 General NTA PM permitted the Government’s
use of DACA information here. In any event, the applicability of the district
court’s injunction in CASA de Maryland is an open question because the Fourth
5 23-1536 Circuit vacated the injunction approximately two months before the BIA issued its
decision. CASA de Maryland v. DHS, 924 F.3d 684 (4th Cir. 2019). To the extent
the injunction was enforceable at the time of the BIA’s decision, the Government
did not violate its terms.3
2. Because the DACA documents were admissible and established
independent evidence of Petitioner’s alienage and removability, we need not reach
Petitioner’s claim that the BIA erred in failing to exclude Form I-213.
3. Petitioner does not contest that his motion to reopen was untimely,
and he fails to establish any abuse of discretion in finding that equitable tolling was
unwarranted given that the evidence he obtained was merely cumulative and
corroborated evidence that the BIA already considered. Mejia-Hernandez v.
Holder, 633 F.3d 818, 824 (9th Cir. 2011).
PETITION DENIED.4
3 Because we hold that the Government did not violate the Casa de Maryland injunction or the 2018 General NTA PM, we need not address whether violation of a policy memorandum is enforceable under United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260 (1954). 4 The Motion for a Stay of Removal, Dkt. 6, is DENIED. The temporary stay of removal shall remain in place until the mandate issues.
6 23-1536