AVALOS SUAREZ v. WHITAKER (2018)

MEMORANDUM **

Priscilliano Avalos-Suarez (“Avalos-Suarez”), a native and citizen of Mexico, petitions for review of the Board of Immigration Appeals’ (BIA’s) denial of his motion to reopen his 1993 deportation proceedings sua sponte. We have jurisdiction to review BIA “decisions denying sua sponte reopening 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). Because the BIA misinterpreted Perez-Enriquez v. Gonzales, 463 F.3d 1007 (9th Cir. 2006) (en banc), we remand to the BIA.

The BIA misinterpreted Perez-Enriquez, citing it for the proposition that there was a “lack of clarity ․ in the law” about admissibility of Special Agricultural Worker (SAW) permanent residents like Avalos-Suarez at the time of his 1993 arrest and deportation. Relying on this legal uncertainty, the BIA concluded there were no egregious circumstances that would warrant reopening his 1993 deportation proceedings, during which he was not informed of his legal status. However, Perez-Enriquez supports the opposite proposition: there was legal clarity. In that case, we explained the BIA had “consistently” interpreted the law to mean that admissibility for agricultural workers under the SAW program is “determined as of the date of adjustment of status to lawful temporary resident” and “is not redetermined as of the date of automatic adjustment of status to lawful permanent resident.” Perez-Enriquez, 463 F.3d at 1014-15. Because of this misunderstanding, the BIA failed to “exercise its authority against the correct ‘legal background.’ ” Bonilla, 840 F.3d at 588. We remand so the BIA can address, without this legal error, whether there are exceptional circumstances to warrant sua sponte reopening.

REMANDED.