Salvador Trujillos Silva v. Merrick Garland ( 2022 )

NOT FOR PUBLICATION FILED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
SALVADOR TRUJILLOS SILVA, No. 18-71134
Petitioner, Agency No. A074-797-189
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted March 14, 2022**
San Francisco, California
Before: W. FLETCHER and COLLINS, Circuit Judges, and FEINERMAN,***
District Judge.
Salvador Trujillos Silva, a native and citizen of Mexico, petitions for review
of an order of the Board of Immigration Appeals (“BIA”) denying his motion to
*
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 Gary Feinerman, United States District Judge for the
Northern District of Illinois, sitting by designation.
reopen his removal proceedings. We have jurisdiction pursuant to 8 U.S.C.
§ 1252, and we review for abuse of discretion the BIA’s denial of Silva’s motion to
reopen. Bonilla v. Lynch, 840 F.3d 575, 581 (9th Cir. 2016). The petition for
review is denied.
In 2014, Silva moved the BIA to reopen his removal proceedings so that he
could seek an I-601A provisional unlawful presence waiver. At the time, the
governing regulation made him ineligible for an I-601A waiver unless his removal
proceedings were reopened and then administratively closed. See 8 C.F.R.
§ 212.7(e)(4)(v), (vi) (2014). In a 2014 decision, the BIA failed to give Silva’s
motion reasoned consideration, so we granted his petition for review and
remanded. Silva v. Sessions, 715 F. App’x 628, 630 (9th Cir. 2017). On remand,
the BIA again denied Silva’s motion, reasoning that, under a 2016 amendment to
the regulation, Silva “does not need to have his removal proceedings reopened or
administratively closed to be able to apply for a provisional unlawful presence
waiver.” Silva then filed the present petition for review.
1. The petition is not moot. “[A] case becomes moot only when it is
impossible for a court to grant any effectual relief whatever to the prevailing
party.” Chafin v. Chafin, 568 U.S. 165, 172 (2013) (internal quotation marks
omitted). Although the 2016 amendment to the regulation “bears on whether the
panel should deny [Silva’s] underlying petition seeking relief from the BIA order
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denying reopening,” that amendment “does not mean that the [p]etition has been
rendered moot.” Granados-Oseguera v. Mukasey, 546 F.3d 1011, 1015 (9th Cir.
2008). If the BIA had misinterpreted the amended regulation, or otherwise abused
its discretion, granting the petition for review and remanding would provide
effectual relief to Silva.
2. The BIA did not abuse its discretion in denying the motion to reopen. Its
decision correctly stated that, under the amended regulation, Silva can apply for an
I-601A provisional waiver even with a final order of removal. See 8 C.F.R.
§ 212.7(e)(4)(iv) (allowing individuals with final orders of removal to seek the
provisional waiver if they first obtain consent to reapply for admission under
8 C.F.R. § 212.2(j)). It follows that the BIA reasonably concluded that there was
no need to reopen and then administratively close his removal proceedings.
3. The BIA did not err in denying his motion to reopen on remand without
first ordering supplemental briefing on the amended regulation. See Theagene v.
Gonzales, 411 F.3d 1107, 1113 (9th Cir. 2005) (“Though a tribunal often requests
supplemental briefs in such cases [involving an intervening change in law],
applying new law to a pending case without notice does not, under any authority
cited to us, offend due process.”). Silva could have sought leave to file a
supplemental brief after his case was remanded. See id. (“[P]ublication of
controlling legal authority … provide[s] sufficient notice and an opportunity to
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address the legal issues raised in that authority in a motion … for leave to file a
supplemental brief.”); BIA Practice Manual ¶ 4.6(g)(ii) (“If a party discovers new
authority and wishes to file a supplemental brief, … the party should submit the
brief along with a ‘MOTION TO ACCEPT SUPPLEMENTAL BRIEF’ … .”).
Nothing in the record indicates that he did so. Cf. Garcia v. Holder, 621 F.3d 906,
913 (9th Cir. 2010) (holding that, where a petitioner moved to file a supplemental
brief, “the BIA was required to exercise [its] discretion” whether to consider the
brief).
PETITION DENIED.
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