                              NOT FOR PUBLICATION                        FILED
                    UNITED STATES COURT OF APPEALS                       NOV 16 2018
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                              FOR THE NINTH CIRCUIT

PRISCILLIANO AVALOS-SUAREZ,                     No.    16-72773

                Petitioner,                     Agency No. A070-347-934

 v.
                                                MEMORANDUM*
MATTHEW G. WHITAKER, Acting
Attorney General,

                Respondent.

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

                     Argued and Submitted November 8, 2018
                              Seattle, Washington

Before: McKEOWN and FRIEDLAND, Circuit Judges, and BOLTON,** District
Judge.

      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



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The Honorable Susan R. Bolton, United States District Judge for the
District of Arizona, sitting by designation.
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


                                           2
warrant sua sponte reopening.

      REMANDED.




                                3
