NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FILED
FOR THE NINTH CIRCUIT
MAY 27 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
JOSE ANTONIO HERNANDEZ- No. 11-73097
CHAVEZ,
Agency No. A097-796-212
Petitioner,
v. MEMORANDUM*
LORETTA E. LYNCH, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted May 6, 2016
Pasadena, California
Before: M. SMITH and NGUYEN, Circuit Judges, and GORDON,** District
Judge.
Petitioner Jose Antonio Hernandez-Chavez challenges the Board of
Immigration Appeals’ (BIA) decision to affirm the Immigration Judge’s (IJ) denial
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Andrew P. Gordon, District Judge for the U.S. District
Court for the District of Nevada, sitting by designation.
of a continuance, which led to a finding that Petitioner had missed the deadline to
apply for relief and thereby waived his opportunity to do so. Petitioner also appeals
the BIA’s subsequent denial of his motion to remand. We have jurisdiction under 8
U.S.C. § 1252(a), and we deny in part and grant in part the petition.
1. Reviewing for abuse of discretion, see Taggar v. Holder, 736 F.3d 886, 889
(9th Cir. 2013), we hold that the IJ appropriately denied the continuance, see 8
C.F.R. §1003.29, and deemed Petitioner’s opportunity to file an application for
relief waived in light of his failure to comply with deadlines for such relief, see 8
C.F.R. § 1003.31. The IJ had previously granted several continuances. Petitioner
requested a final continuance in order to obtain eligibility for relief by marrying his
U.S.-citizen partner and awaiting the results of a pending request to expunge a
2003 conviction. The IJ denied the continuance for lack of good cause, reasoning
in part that the expungement was speculative. As Petitioner did not file for relief in
the designated time, and as the IJ properly denied his request for a continuance, the
IJ also acted within his discretion in deeming Petitioner’s opportunity to apply for
relief waived under 8 C.F.R. § 1003.31.
2. Subsequent to the IJ’s decision, Petitioner’s disqualifying 2003 conviction
was expunged. Hernandez-Chavez filed a motion to remand before the BIA so that
he could apply for relief. Although he styled his motion as one to remand, “the
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formal requirements of a motion to reopen and those of a motion to remand are for
all practical purposes the same.” Rodriguez v. INS, 841 F.2d 865, 867 (9th Cir.
1987). The BIA shall not grant a motion to reopen unless the evidence presented is
“material and was not available and could not have been discovered or presented at
the former hearing.” 8 C.F.R. § 1003.2(c)(1). We review its decision for an abuse
of discretion. See Tadevosyan v. Holder, 743 F.3d 1250, 1252–53 (9th Cir. 2014).
In denying the motion, the BIA reasoned that remand would be futile
because “[e]ven assuming that the respondent’s expunged 2003 conviction may no
longer bar the respondent from eligibility . . . the respondent appears ineligible for
the requested forms of relief” because a 2004 conviction would independently
render him ineligible. The BIA’s conclusion that the changed circumstance
regarding Petitioner’s 2003 conviction was not material, and thus remand would be
futile, was erroneous and an abuse of discretion because the BIA failed to conduct
the required analysis.
Taylor v. United States, 495 U.S. 575 (1990), which was clarified by
Descamps v. United States, 133 S.Ct. 2276, 2283 (2013), sets forth the analysis
used to determine whether a state conviction counts as a qualifying conviction for
the purposes of the immigration statutes. Under this case law, the BIA ought to
have asked whether Petitioner’s 2004 conviction, under California Business and
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Professions Code § 4060, was a categorical match for the federal “controlled
substance” offense, 21 U.S.C. § 802.
If § 4060 is not a categorical match for the federal offense, then the BIA
should have examined whether the state statute was divisible. See Rendon v.
Holder, 764 F.3d 1077, 1086 (9th Cir. 2014). When presented with an indivisible
statute that presents no categorical match for the federal offense, a court shall “end
[its] inquiry.” Almanza-Arenas v. Lynch, 809 F.3d 515 (9th Cir. 2015) (en banc).
Conversely, where a statute is divisible, we apply the modified categorical
approach. Descamps, 133 S. Ct. at 2281. Because the BIA did not consider the
divisibility of Section 4060 or the applicability of the modified categorical
approach, it erred in holding Petitioner’s 2004 conviction to constitute a bar to
relief. Accordingly, we remand for the BIA to evaluate Petitioner’s motion on an
open record.1 See Andia v. Ashcroft, 359 F.3d 1181, 1184 (9th Cir. 2004) (“If we
conclude that the BIA’s decision cannot be sustained upon its reasoning, we must
remand to allow the agency to decide any issues remaining in the case.”).
As an initial matter, the government argues Petitioner cannot use a motion
to reopen or remand to submit an application that was deemed waived under 8
1
We note that at oral argument, Petitioner represented for the first time that his 2004
conviction has been expunged.
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C.F.R. § 1003.31. This argument is unavailing, and the government cites no
authority to the contrary. Petitioner satisfies the requirements of 8 C.F.R. §
1003.2(c)(1) in that the expunged conviction was material to his eligibility for
relief and previously unavailable. This changed circumstance has rendered the
basis of the agency’s initial eligibility finding erroneous. See also Kucana v.
Holder, 558 U.S. 233, 242 (2010) (motion to reopen serves as “an important
safeguard . . . to ensure a proper and lawful disposition of immigration
proceedings.”) (quotations omitted).
The government further argues that other grounds would independently bar
relief. Two of these arguments, concerning whether Petitioner has otherwise met
his burden of proof and whether he is procedurally barred from relief due to failure
to comply with 8 C.F.R. § 1003.2(c)(1), improperly ask us to decide the case on
grounds not “relied upon” by the agency. Andia, 359 F.3d at 1184; see Abebe v.
Gonzales, 432 F.3d 1037, 1041 (9th Cir. 2005) (en banc) (“When the BIA has
ignored a procedural defect and elected to consider an issue on its substantive
merits, we cannot then decline to consider the issue. . . .”). The final argument,
administrative exhaustion, fails for a separate reason. In highlighting the 2004
conviction, the BIA sua sponte raised a new legal issue that had not been relied on
by the IJ below. Waiver therefore does not apply. See Abebe, 432 F.3d at 1041.
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PETITION FOR REVIEW DENIED in part; GRANTED in part.
The parties shall bear its own costs on appeal.
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