NOT FOR PUBLICATION FILED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.
4