                                                                          FILED
                            NOT FOR PUBLICATION                            OCT 17 2013

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



                            FOR THE NINTH CIRCUIT


VICTOR HUGO MENDOZA MEDINA,                      No. 10-73583

              Petitioner,                        Agency No. A013-210-491

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

              Respondent.



VICTOR HUGO MENDOZA MEDINA,                      No. 11-70727

              Petitioner,                        Agency No. A013-210-491

  v.

ERIC H. HOLDER, Jr., Attorney General,

              Respondent.



VICTOR HUGO MENDOZA MEDINA,                      No. 11-71344

              Petitioner,                        Agency No. A013-210-491

  v.


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
ERIC H. HOLDER, Jr., Attorney General,

              Respondent.


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

                     Argued and Submitted September 9, 2013
                            San Francisco, California

Before: SCHROEDER and BYBEE, Circuit Judges, and BATTAGLIA, District
Judge.**

      Victor Medina, a native and citizen of Bolivia, petitions for review of three

decisions by the Board of Immigration Appeals (“BIA”). We grant in part, dismiss

in part, and deny in part the petitions for review and remand to the BIA.

      In December 2007, the BIA affirmed a decision by an Immigration Judge

(“IJ”) concluding that Medina was not eligible for cancellation of removal under 8

U.S.C. § 1229b(a) because he was convicted of an aggravated felony. While

residing in the United States as a lawful permanent resident, Medina was twice

convicted of misdemeanor possession of crack cocaine. The BIA deemed his

second conviction an aggravated felony under its decision in In re Carachuri-

Rosendo, 24 I. & N. Dec. 382 (B.I.A. 2007) (en banc).


       **
             The Honorable Anthony J. Battaglia, District Judge for the U.S.
District Court for the Southern District of California, sitting by designation.

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      After being removed to Bolivia, Medina attempted to reenter the United

States. While he was detained in Arizona, the United States Supreme Court

reversed the BIA’s decision in Carachuri-Rosendo, which was the basis for the

BIA’s determination in December 2007 that Medina was not eligible for

cancellation of removal. See Carachuri-Rosendo v. Holder, 130 S. Ct. 2577,

2589–90 (2010).

      In November 2010, the BIA noted that the Court’s decision in Carachuri-

Rosendo constituted a “material change[] in the law,” but declined to reopen

Medina’s 2007 removal proceedings sua sponte because of the “departure bar” in 8

C.F.R. § 1003.2(d). Under the BIA’s interpretation of the departure bar, it is

precluded from reopening prior removal proceedings—whether on motion or sua

sponte—after the alien has been removed from the United States pursuant to those

proceedings. See Matter of Armendarez-Mendez, 24 I. & N. Dec. 646, 648 (B.I.A.

2008). That interpretation is inconsistent with this court’s precedent, which

provides that the BIA is not jurisdictionally barred from determining whether to

reopen prior proceedings if the alien was involuntarily removed from the United

States. See Coyt v. Holder, 593 F.3d 902, 907 (9th Cir. 2010); Reynoso-Cisneros

v. Gonzales, 491 F.3d 1001, 1002 (9th Cir. 2007) (per curiam); Lin v. Gonzales,

473 F.3d 979, 981–82 (9th Cir. 2007). In its brief, the government argued that we


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should remand to the BIA with instructions to determine whether to apply Ninth

Circuit or Fifth Circuit law in determining whether 8 C.F.R. § 1003.2(d) bars the

BIA from considering whether to reopen the 2007 proceedings. At argument, the

government acknowledged that the Fifth Circuit has now also held that 8 C.F.R. §

1003.2(d) does not deprive the BIA of jurisdiction to entertain whether to reopen

prior removal proceedings after the alien has been removed. See Garcia-Carias v.

Holder, 697 F.3d 257, 264 (5th Cir. 2012); Lari v. Holder, 697 F.3d 273, 277 (5th

Cir. 2012).

      We grant the portion of Medina’s petition that challenges the BIA’s reliance

on the departure bar in declining whether to consider reopening his 2007 removal

proceedings. We remand to the BIA so that it may decide whether to reopen the

2007 removal proceedings without relying on its interpretation of 8 C.F.R. §

1003.2(d).

      Medina further urges this court to order the BIA to invalidate his 2007

removal proceedings on the basis that they resulted in a “gross miscarriage of

justice” because the IJ denied Medina’s fourth request for a continuance to retain

an attorney and applied Fifth Circuit law rather than Ninth Circuit law in

determining that Medina did not qualify for cancellation of removal. We lack

jurisdiction to review this claim because Medina never raised these arguments


                                         4
before the IJ or the BIA in the proceedings that are the subject of the petition for

review. See Barron v. Ashcroft, 358 F.3d 674, 678 (9th Cir. 2004). This court has

permitted aliens to collaterally attack prior removal proceedings in subsequent

removal proceedings, which are in turn subject to review by this court. See, e.g.,

Garcia de Rincon v. D.H.S., 539 F.3d 1133, 1138 (9th Cir. 2008); Ramirez-Juarez

v. I.N.S., 633 F.2d 174, 175–76 (9th Cir. 1980). But there is no support for the

proposition that an alien can collaterally attack a prior removal proceeding by

raising arguments before this court that have never been presented to the BIA.

Accordingly, we dismiss Medina’s petition for review to the extent that it

collaterally attacks his 2007 removal proceedings on the grounds that they

constituted a “gross miscarriage of justice.”

      Finally, Medina contends that the BIA erred by affirming the IJ’s decision

that he does not qualify for asylum. Specifically, Medina argues that the BIA

failed to address his assertion that he faces a well-founded fear of future

persecution in Bolivia on account of his status as an HIV-positive individual. In its

November 2010 decision, the BIA explained that the IJ found that Medina “had not

suffered past persecution or shown a well-founded fear of future persecution” and

observed that the events that Medina offered in support of the claim did not rise to

the level of persecution. Even if the BIA’s analysis does not address with


                                           5
particularity Medina’s fear of future persecution on account of his HIV-positive

status, this court may look to the reasoning in the IJ’s opinion under these

circumstances. See Avetova-Elisseva v. I.N.S., 213 F.3d 1192, 1197 (9th Cir. 2000)

(“[T]he lack of analysis that the BIA opinion devoted to the issue at hand—its

simple statement of a conclusion—also suggests that the BIA gave significant

weight to the IJ’s findings. In light of that ambiguity, we will also look to the IJ’s

oral decision as a guide to what lay behind the BIA’s conclusion.”). The IJ

expressly rejected the claim at issue here when it concluded that “[t]he Court also

does not find that the respondent has established a well-founded fear of future

persecution” before examining the specific instances of mistreatment that formed

the basis of Medina’s application for asylum. Substantial evidence supports the

conclusion reached by the IJ and the BIA that Medina does not qualify for asylum.

As a result, we deny Medina’s petition for review with respect to this claim.

      Each party shall bear its own costs for this petition for review.

      The petition for review is GRANTED in part, DISMISSED in part,

DENIED in part, and REMANDED.




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