Jenaro Morales Flores v. Merrick Garland ( 2023 )

FILED
NOT FOR PUBLICATION
FEB 9 2023
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JENARO MORALES FLORES, No. 20-71302
Petitioner, Agency No. A073-967-288
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted February 6, 2023**
Pasadena, California
Before: BOGGS,*** IKUTA, and DESAI, Circuit Judges.
Jenaro Morales Flores (Morales Flores) appeals the decision of the Board of
Immigration Appeals (BIA) dismissing his appeal from an Immigration Judge’s
*
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 Danny J. Boggs, United States Circuit Judge for the
U.S. Court of Appeals for the Sixth Circuit, sitting by designation.
(IJ) decision denying his motion to reopen proceedings sua sponte to allow him to
apply for adjustment of status. Our jurisdiction is governed by 8 U.S.C. § 1252.
We lack jurisdiction to review a denial of sua sponte reopening except for “the
limited purpose of reviewing the reasoning behind the decision for legal or
constitutional error.” Bonilla v. Lynch, 840 F.3d 575, 588 (9th Cir. 2016).
Morales Flores has forfeited any argument that the BIA committed a legal
or constitutional error in denying his motion to reopen as untimely and number
barred by failing to raise the issue on appeal. See Floyd v. Filson, 949 F.3d 1128,
1138 n.2 (9th Cir. 2020). Nor did the BIA commit a legal or constitutional error in
holding that Morales Flores failed to show prima facie eligibility for adjustment of
status, because Morales Flores is not an alien “inspected and admitted or paroled
into the United States,” and so does not meet the threshold requirement for
adjustment of status. 8 U.S.C. § 1255(a). Morales Flores’s argument that he will
be eligible for adjustment of status if he is granted parole in place, which may
occur if the BIA reopens his proceedings to allow him to apply for parole-in-place,
is speculative, and does not demonstrate prima facie eligibility for relief. See id.;
see also Obitz v. Dist. Dir. of INS, 623 F.2d 1331, 1332 (9th Cir.1980) (en banc).
Finally, the BIA did not commit a legal or constitutional error by failing to
provide additional explanation to support its conclusion that Morales Flores was
2
not prima facie eligible for adjustment of status. See INS v. Abudu, 485 U.S. 94,
104–05 (1988).
The BIA did commit a legal error, however, in denying Morales Flores’s
request to terminate his removal proceedings on the ground that he “did not identify
a legal basis for termination.” In reaching this decision, the BIA relied on Matter of
S-O-G- & F-D-B-, 27 I. & N. Dec. 462, 463 (A.G. 2018), which held that an IJ
could generally terminate removal proceedings only when permitted by the
applicable regulations, see 8 C.F.R. § 1239.2(c), (f). On November 17, 2022, after
the date of the BIA’s decision here, the Attorney General overruled Matter of
S-O-G- & F-D-B-, and instead held that IJ’s and the BIA have the discretion to
grant termination in limited circumstances that are not identified in the applicable
regulations, including when “termination is necessary for the respondent to be
eligible to seek immigration relief” before the United States Citizenship and
Immigration Services. Matter of Coronado Acevedo, 28 I. & N. Dec. 648, 651–52
(A.G. 2022).1 Because the BIA’s denial of Morales Flores’s request for termination
was “premised on an erroneous legal understanding,” Bonilla, 840 F.3d at 589, we
1
On January 31, 2023, the government filed an unopposed motion to remand
this matter to the BIA in light of this change in the law.
3
must remand to the BIA “to exercise its discretion against the correct legal
framework,” id. at 592.2
DISMISSED IN PART; VACATED AND REMANDED IN PART.
2
Because this disposition resolves Morales Flores’s petition for review, we
deny the government’s request to stay proceedings in this court. The BIA is the
appropriate body to grant the government’s request for a stay. Dkt 38. See
Ramirez Sanchez v. Mukasey, 508 F.3d 1254, 1256 n.2 (9th Cir. 2007) (per
curiam). Each party shall bear its own costs on appeal. We also deny as moot the
petitioner’s motion for a stay of removal pending appeal. Dkt 1.
4