                                                                              FILED
                             NOT FOR PUBLICATION                              MAR 13 2015

                                                                           MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                         U.S. COURT OF APPEALS



                             FOR THE NINTH CIRCUIT


FERNANDO MENENDEZ-GONZALEZ,                      No. 11-73554

               Petitioner,                       Agency No. A072-062-253

  v.
                                                 MEMORANDUM*
ERIC H. HOLDER, Jr., Attorney General,

               Respondent.


                      On Petition for Review of an Order of the
                          Board of Immigration Appeals

                        Argued and Submitted March 4, 2015
                                Pasadena California

Before: REINHARDT, N.R. SMITH, and HURWITZ, Circuit Judges.

       Fernando Menendez-Gonzalez petitions for review of an order of the Board of

Immigration Appeals (BIA) denying his motion to reopen removal proceedings sua

sponte. We grant the petition and remand to the BIA for clarification.

        We lack jurisdiction to review the BIA’s discretionary decision to grant or

deny sua sponte reopening. See Ekimian v. INS, 303 F.3d 1153, 1157-59 (9th Cir.


         *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
2002). However, when we cannot determine the basis of the BIA’s decision, we

cannot conduct a meaningful review of the BIA decision denying sua sponte

reopening to determine whether the agency actually exercised its discretion. See

Delgado v. Holder, 648 F.3d 1095, 1108 (9th Cir. 2011) (en banc).

      Here, the BIA’s order is ambiguous with regard to whether it applied the

proper legal framework of “exceptional circumstances” in its determination not to

reopen Menendez’s case under its sua sponte authority. Although we recognize the

BIA’s unfettered discretion to invoke its sua sponte authority, Ekimian, 303 F.3d at

1159, the order is unclear whether it applied a “gross miscarriage of justice” test

(applicable to collateral attacks of prior removal orders) or an “exceptional

circumstances” test (applicable to sua sponte reopenings). Therefore, we remand

to the BIA to clarify the legal standard under which it denied Menendez’s motion

to reopen.

      PETITION FOR REVIEW GRANTED; REMANDED.




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