FILED
NOT FOR PUBLICATION MAR 13 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
FERNANDO MENENDEZ-GONZALEZ, No. 11-73554
Petitioner, Agency No. A072-062-253
v.
MEMORANDUM*
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted March 4, 2015
Pasadena California
Before: REINHARDT, N.R. SMITH, and HURWITZ, Circuit Judges.
Fernando Menendez-Gonzalez petitions for review of an order of the Board of
Immigration Appeals (BIA) denying his motion to reopen removal proceedings sua
sponte. We grant the petition and remand to the BIA for clarification.
We lack jurisdiction to review the BIA’s discretionary decision to grant or
deny sua sponte reopening. See Ekimian v. INS, 303 F.3d 1153, 1157-59 (9th Cir.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
2002). However, when we cannot determine the basis of the BIA’s decision, we
cannot conduct a meaningful review of the BIA decision denying sua sponte
reopening to determine whether the agency actually exercised its discretion. See
Delgado v. Holder, 648 F.3d 1095, 1108 (9th Cir. 2011) (en banc).
Here, the BIA’s order is ambiguous with regard to whether it applied the
proper legal framework of “exceptional circumstances” in its determination not to
reopen Menendez’s case under its sua sponte authority. Although we recognize the
BIA’s unfettered discretion to invoke its sua sponte authority, Ekimian, 303 F.3d at
1159, the order is unclear whether it applied a “gross miscarriage of justice” test
(applicable to collateral attacks of prior removal orders) or an “exceptional
circumstances” test (applicable to sua sponte reopenings). Therefore, we remand
to the BIA to clarify the legal standard under which it denied Menendez’s motion
to reopen.
PETITION FOR REVIEW GRANTED; REMANDED.
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