                              NOT FOR PUBLICATION                        FILED
                    UNITED STATES COURT OF APPEALS                       OCT 18 2017
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                              FOR THE NINTH CIRCUIT

JUAN DE DIOS MOLINA-PENA,                       No.    12-73642

                Petitioner,                     Agency No. A092-300-354

 v.
                                                MEMORANDUM*
JEFFERSON B. SESSIONS III, Attorney
General,

                Respondent.

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

                      Argued and Submitted August 31, 2017
                               Seattle, Washington

Before: McKEOWN and GOULD, Circuit Judges, and FOOTE,** District Judge.

      Juan Molina-Pena petitions for review of the Board of Immigration Appeals’

(“BIA”) decision dismissing his appeal from an immigration judge’s denial of his

motion to reopen his deportation proceedings. We review the denial of a motion to

reopen for abuse of discretion, and questions of law and constitutional issues de


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
            The Honorable Elizabeth E. Foote, United States District Judge for the
Western District of Louisiana, sitting by designation.
novo. Avila-Sanchez v. Mukasey, 509 F.3d 1037, 1040 (9th Cir. 2007). We defer

to the decision of the BIA unless it acted in a manner that was “arbitrary, irrational,

or contrary to law.” Caruncho v. INS, 68 F.3d 356, 360 (9th Cir. 1995). For the

reasons announced below, we deny in part and grant in part the petition for review,

and remand to the BIA for clarification.

      The BIA did not abuse its discretion in denying Molina-Pena’s motion to

reopen as untimely when he did not file his motion until more than a decade after

the deportation order became final and failed to show that he acted with the due

diligence required to warrant equitable tolling. See Iturribarria v. INS, 321 F.3d

889, 897 (9th Cir. 2003).

      Because Molina-Pena did not meet the timing requirements and is not

entitled to equitable tolling, his only remaining avenue for relief was to ask the

BIA to reopen his proceedings sua sponte. Bonilla v. Lynch, 840 F.3d 575, 585

(9th Cir. 2016). The BIA has found that its power to reopen sua sponte is limited

to “exceptional circumstances,” In Re J-J-, 21 I. & N. Dec. 976, 984 (BIA 1997),

and we ordinarily lack jurisdiction to review such a determination. See Bonilla,

840 F.3d at 586-88.

      Here, it is unclear whether the BIA applied the “exceptional circumstances”

standard to Molina-Pena’s claims. While the BIA briefly referenced the standard

in its order, it clearly applied the “gross miscarriage of justice” standard as well.


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Therefore, we remand to the BIA to clarify the legal standard applied and to

enunciate the reasons for the denial of sua sponte reopening. As is permitted under

the limited scope of review defined in Bonilla, we remand for the “limited

purpose” of requiring the agency to state the reasoning behind its decision, so that

we may review for legal or constitutional error. 840 F.3d at 588.

      Accordingly, the petition is DENIED in part, GRANTED in part, and

REMANDED.




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