Sareang Ye v. MERRICK B. GARLAND, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
SAREANG YE,
Petitioner,
v.
MERRICK B. GARLAND, Attorney
General,
Respondent.
No. 21-183
Agency No.
A025-315-317
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted March 30, 2023**
San Francisco, California
Before: M. SMITH and OWENS, Circuit Judges, and RODRIGUEZ, District
Judge.***
Sareang Ye petitions this court to review a decision by the Board of
Immigration Appeals (BIA) in which the BIA declined to exercise its own
authority to sua sponte reopen and dismissed Ye’s appeal from a decision of an
* 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 Xavier Rodriguez, United States District Judge for
the Western District of Texas, sitting by designation.
FILED
APR 17 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
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Immigration Judge (IJ) also declining to sua sponte reopen. Since the parties are
familiar with the facts, we do not recount them except as needed to provide
context. “Where, as here, the Board incorporates the IJ’s decision into its own
without citing Matter of Burbano, 20 I. & N. Dec. 872 (BIA 1994), this court will
review the IJ’s decision to the extent incorporated.” Medina-Lara v. Holder, 771
F.3d 1106, 1111 (9th Cir. 2014). We grant the petition for review and remand to
the BIA for further proceedings consistent with this decision.
1. We have jurisdiction to consider Ye’s argument that the BIA
committed legal error when it denied sua sponte reopening based solely on its
determination that Descamps v. United States, 570 U.S. 254 (2013) is not a
“fundamental change in law.”
We generally lack jurisdiction to review the BIA’s ultimate conclusion that
a movant failed to establish “exceptional circumstances” warranting sua sponte
reopening. Ekimian v. INS., 303 F.3d 1153, 1156–59 (9th Cir. 2002). However,
we retain jurisdiction where the BIA, in denying reopening, “relied on an
incorrect legal premise” that provides “a sufficiently meaningful standard against
which” to conduct judicial review. Bonilla v. Lynch, 840 F.3d 575, 586–89 (9th
Cir. 2016) (quoting Ekimian, 303 F.3d at 1159). The BIA’s reliance on the
“incorrect legal premise” must be “apparent on the face of the BIA’s decision.”
Lona v. Barr, 958 F.3d 1225, 1233–34 (9th Cir. 2020).
Here, the BIA articulated only one reason for denying relief: “Because
Descamps v. United States ‘represents at most an incremental development in the
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law,’ . . . we conclude that the Supreme Court’s decision is not grounds for sua
sponte reopening in the respondent’s case” (citation omitted). While the IJ
articulated three alternative reasons for denying relief (the agency’s interest in
finality, a controlled-substances conviction unaffected by Descamps, and Ye’s
immigration and criminal history), the BIA did not incorporate those reasons into
its decision. The BIA mentioned the controlled-substance conviction and Ye’s
showing on appeal that it had been vacated on state-law grounds, but the BIA
declined to decide whether the since-vacated conviction was an independent basis
on which to deny sua sponte reopening. Moreover, the BIA never referenced, let
alone incorporated, the IJ’s finality and criminal/immigration-history reasons.
Therefore, we are presented with the rare instance in which the BIA’s no-
fundamental-change determination is its sole basis for denying reopening.1
Whether a change in law is fundamental is a “legal premise” that provides
“a sufficiently meaningful standard against which” to conduct judicial review.
Bonilla, 840 F.3d at 586. Courts are well-positioned to conduct change-in-law
inquiries and do so across a variety of legal contexts. See, e.g., Bynoe v. Baca,
966 F.3d 972, 982–83 (9th Cir. 2020) (determining whether an intervening case
constituted a “clear and authoritative change in law” for purposes of Federal Rule
1 In his opening brief, Ye argued that the BIA articulated only this one reason
for denying relief. The government, however, failed to substantively respond to
this argument in its answering brief and instead simply asserted—without citing
any specific portion of the BIA’s decision—that the BIA incorporated the IJ’s
alternative reasons for denying reopening.
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of Civil Procedure 60(b)(6)’s “extraordinary-circumstances requirement”).
Moreover, we regularly review the BIA’s denials of motions to reopen based on
purported material changes in country conditions—a factual analog to the review
Ye requests here. See 8 U.S.C. § 1229a(c)(7)(C)(ii). Because the BIA’s
fundamental-change determination was its only articulated reason for denial, any
error in that “legal premise” would necessarily taint its ultimate denial of sua
sponte reopening. Therefore, we have jurisdiction to review Ye’s argument that
the BIA erred as a matter of law in determining that Descamps is not a
fundamental change in law.2
2. The government, however, waived any defense of the BIA’s
fundamental-change determination by failing to address the merits of Ye’s
argument in its answering brief. See United States v. McEnry, 659 F.3d 893, 902
(9th Cir. 2011) (holding that the government waived an argument it failed to raise
in its answering brief). Due to this waiver, the BIA’s fundamental-change
determination is insufficient to support its denial of sua sponte reopening. We
therefore “vacate and remand to the Board to exercise its discretion against the
correct legal framework.” Bonilla, 840 F.3d at 592. On remand, the BIA should
2 The government argues that Lona precludes jurisdiction over this case. But
Lona simply held that “we need not decide whether [an intervening case]
fundamentally changed the law” because the BIA’s decision rested only on
discretionary, value-laden reasons for denying relief. 958 F.3d at 1233–34. In
Lona, the BIA had not made a fundamental-change determination. See id. (the
BIA “acknowledged” the movant’s fundamental-change argument and “then
noted three factors weighing against” reopening).
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consider, without any reliance on the waived fundamental-change determination,
whether Ye merits sua sponte reopening.
The petition for review is GRANTED; REMANDED.
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