Quinonez-Rodas v. Gonzales

BERZON, Circuit Judge,

dissenting:

I respectfully dissent.

Moises Quinonez-Rodas moved to reopen an in absentia deportation order on two grounds: rescission of the deportation order based on exceptional circumstances¹ and adjustment of status based upon visa petitions filed by his U.S. citizen mother and wife. The BIA, without explanation, never considered or even referred to the adjustment of status ground for reopening.

“[T]here must be a reasoned explanation by the BIA of the basis for its decision.” Franco-Rosendo v. Gonzales, 454 F.3d 965, 966 (9th Cir.2006) (citing Movsisian v. Ashcroft, 395 F.3d 1095, 1098 (9th Cir.2005)). “The BIA abuses its discretion when it fails to ‘consider and address in its entirety the evidence submitted by a petitioner’ and to ‘issue a decision that fully explains the reasons for denying a motion to reopen.’ ” Franco-Rosendo, 454 F.3d at 966 (quoting Mohammed v. Gonzales, 400 F.3d 785, 792-93 (9th Cir.2005)). It abused its discretion here.

The BIA adopted the decision of the Immigration Judge (IJ) so “we review the IJ’s decision as if it were that of the BIA.” Abebe v. Gonzales, 432 F.3d 1037, 1039 (9th Cir.2005); see also Matter of Burbano, 20 I. & N. Dec. 872, 874 (BIA 1994). The IJ only considered whether the motion to reopen to rescind was timely and concluded it was not. The BIA, adopting this decision, also referred only to the rescission ground. But, under the statutory framework applicable to Quinonez-Rodas, the rescission provisions do not apply to a motion to reopen to adjust status, for which rescission is not required. In re MS-, 22 I. & N. Dec. 349, 355-56 (BIA 1998) (en banc) (“[T]he requirements for rescission of an in absentia order are inapplicable to a motion that does not seek rescission of that order.”). So the rescission discussion could not have encompassed the motion for adjustment of status, and there is no indication that it did.²

Quinonez-Rodas has preserved this ground, arguing that he is entitled to adjustment of status in his motion to reopen before the BIA and the IJ and in his brief before this court.

The majority nonetheless affirms the BIA by deciding that Quinonez-Rodas’s motion to adjust status was untimely with regard to the 90-day deadline of 8 C.F.R. § 1003.23(b)(1), a regulatory provision neither the BIA nor the IJ cited. “[T]his court cannot affirm the BIA on a ground upon which it did not rely.” Navas v. 1. N.S., 217 F.3d 646, 658 n. 16 (9th Cir.2000) (citing Securities and Exchange Comm’n v. Chenery, 332 U.S. 194, 196, 67 S.Ct. 1575, 91 L.Ed. 1995 (1947));, see also Malta-Espinoza v. Gonzales, 478 F.3d 1080, 1083 n. 3 (9th Cir.2007) (same). Moreover, the BIA has never held that motions to reopen to adjust status must be filed within 90 days of the deportation order where, as here, there was a five-year statutory barrier to reopening to adjust status due to an in absentia deportation order, rendering a motion filed within ninety days of the deportation order futile. Whether the deadline applies is therefore an open question, and one of some difficulty. We should not be deciding it in the first instance.

I would remand to the BIA for consideration of Quinonez-Rodas’s adjustment of status ground. I therefore respectfully dissent.

1 . I agree with the majority that Quinonez-Rodas could not reopen to rescind his in absentia deportation order. The statute then applicable, 8 U.S.C. § 1252b(c)(3), required both the presence of exceptional circumstances surrounding his absence at his hearing and that such a motion be filed "within 180 days of the order of deportation." Quinonez-Rodas failed to meet the deadline.

2 . If the BIA did apply the rescission requirements to the motion to adjust status, it disregarded its own opinion in In re M-S-, thereby abusing its discretion. Yepes-Prado v. I.N.S., 10 F.3d 1363, 1370 (9th Cir.1993) (the "BIA acts arbitrarily when it disregards its own precedenls and policies without giving a reasonable explanation for doing so.”).