Zamora Santos v. McHenry

• Court: Court of Appeals for the Ninth Circuit
• Decided: January 27, 2025
• Docket: 23-1726
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JAN 27 2025 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

JUAN ZAMORA SANTOS, No. 23-1726 Agency No. Petitioner, A205-713-987 v. MEMORANDUM* JAMES R. MCHENRY III, Acting Attorney General,

Respondent.

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

Submitted January 14, 2025** Pasadena, California

Before: RAWLINSON and M. SMITH, Circuit Judges, and RAKOFF, District Judge.***

Juan Zamora Santos (Zamora Santos), a native and citizen of Mexico,

petitions for review of an order from the Board of Immigration Appeals (BIA)

* 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. dismissing his appeal of the denial of his motion to remand. We have jurisdiction

under 8 U.S.C. § 1252(a)(1) and deny the petition.

A motion for remand is treated the same as a motion to reopen. See Alcarez-

Rodriguez v. Garland, 89 F.4th 754, 759 (9th Cir. 2023). We review the Board’s

denial of a motion to remand for abuse of discretion. See id. “The BIA abuses its

discretion when it acts arbitrarily, irrationally, or contrary to law. . . .” Id. (citation,

alteration and internal quotation marks omitted).

1. Zamora Santos argues that the Board applied the wrong standard in

deciding the motion to remand. Zamora Santos also contends that the Board

abused its discretion when it denied his motion to remand despite the failure of the

Department of Homeland Security to file a brief opposing the motion. A remand is

warranted if the motion to remand states new facts, is “accompanied by the

appropriate application for relief and all supporting documentation,” and

“proffer[s] evidence that is material and was not available and could not have been

discovered or presented at the former hearing.” Id. at 760 (citation and internal

quotation marks omitted). A noncitizen seeking remand need only establish a

prima facie case for relief. See id. at 759.

The Board determined that Zamora Santos had not established a prima facie

case for relief because he presented no evidence that the Department of Homeland

Security intended to exercise prosecutorial discretion in his favor. Because this

2 23-1726 determination was not “arbitrar[y], irrational[], or contrary to law,” and applied the

correct standard, there was no abuse of discretion. Id. (citation omitted).

2. Absent an express statutory requirement, we do not require the

government to file an opposition brief when the non-citizen is the moving party.

See Limsico v. INS, 951 F.2d 210, 213 (9th Cir. 1991). Thus, the Board did not

abuse its discretion in deciding the motion to remand despite the lack of opposition

from the government. See id.

PETITION DENIED.1

1 The stay of removal will remain in place until the mandate issues. The motion for stay of removal is otherwise denied.

3 23-1726