                              NOT FOR PUBLICATION                        FILED
                    UNITED STATES COURT OF APPEALS                        JAN 30 2020
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                              FOR THE NINTH CIRCUIT

JUAN DE DIOS MOLINA-PENA, AKA                   No. 16-70399
Juan De Dios,
                                                Agency No. A092-300-354
                Petitioner,

 v.                                             MEMORANDUM*

WILLIAM P. BARR, Attorney General,

                Respondent.


JUAN DE DIOS MOLINA-PENA,                       No. 18-71633

                Petitioner,                     Agency No. A092-300-354

 v.

WILLIAM P. BARR, Attorney General,

                Respondent.

                    On Petitions for Review of the Orders of the
                          Board of Immigration Appeals

                    Argued and Submitted December 12, 2019
                              Seattle, Washington




      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Before: GRABER and BERZON, Circuit Judges, and EZRA,** District Judge.

      Petitioner Juan Molina-Pena has two petitions before the court. First, he

seeks review of the Board of Immigration Appeals’ (“BIA”) decision affirming the

Department of Homeland Security’s final order of removal. Second, he seeks

review of the BIA’s decision dismissing his appeal of the immigration judge’s

(“IJ”) denial of his sua sponte motion to reopen. We grant Petitioner’s first

petition and deny his second petition.

      1.     The BIA did not commit legal or constitutional error in its denial of

petitioner’s sua sponte motion to reopen. In 2017, we remanded this petition to the

BIA for the “limited purpose” of requiring the BIA to clarify its application of the

“exceptional circumstances” standard to Molina-Pena’s claims so we could review

for legal or constitutional error. Molina-Pena v. Sessions, 699 F. App’x 638,

638−39 (9th Cir. 2017) (unpublished). Following the remand, the BIA concluded

that subsequent changes to the law’s interpretation did not render the IJ’s 1996

decision, denying the respondent’s request for § 212(c) relief, invalid or present an

“exceptional situation.” As permitted by our limited scope of review, we review

this statement for legal or constitutional error. Bonilla v. Lynch, 840 F.3d 575, 588

(9th Cir. 2016). We hold the BIA’s reasoning does not constitute such error and



      **
             The Honorable David A. Ezra, United States District Judge for the
District of Hawaii, sitting by designation.

                                          2                                     16-70399
deny this petition for review.

      2.     We grant Petitioner’s petition for review of his removal petition. We

remand to the BIA for reconsideration of whether Petitioner received proper notice

of his right to appeal the IJ’s 1996 decision and, if not, what effect that finding has

on the analysis of gross miscarriage of justice. Petitioner seeks to collaterally

attack his 1996 removal order. “The BIA has consistently held that ‘an alien may

collaterally attack a final order of exclusion or deportation in a subsequent

deportation proceeding only if she can show that the prior order resulted in a gross

miscarriage of justice.’” Vega-Anguiano v. Barr, 942 F.3d 945, 949 (9th Cir.

2019) (quoting Matter of Roman, 19 I. & N. Dec. 855, 856−57 (B.I.A. 1988)). A

gross miscarriage of justice occurs when a removal order had no valid legal basis

at the time of its issuance or at the time of its execution. Id.

      Petitioner asserts that the IJ erred in his original removal proceeding in 1996

by applying AEDPA retroactively and that he never received notice of his right to

appeal in 1996. Petitioner contrasts his case to those in which we have upheld

deportations based on an erroneous interpretation of AEDPA’s retroactivity when

the petitioners had voluntarily waived the right to appeal their original removal

orders. See Alvarenga-Villalobos v. Ashcroft, 271 F.3d 1169, 1173 (9th Cir. 2001)

(rejecting petitioner’s argument that he had no meaningful review because he

“voluntarily waived” the right to appeal); see also Avila-Sanchez v. Mukasey, 509


                                           3                                    16-70399
F.3d 1037, 1039 (9th Cir. 2007) (noting that the petitioner filed neither a petition

for review nor a habeas corpus petition). Petitioner argues that he never had the

opportunity to appeal his original removal order because he was never notified of

his right to do so. This distinction is important. Had Petitioner appealed the IJ’s

1996 decision to the BIA and later to us, Petitioner may not have been removed at

all—particularly in light of the evolving case law regarding AEDPA’s

retroactivity. See Magano-Pizano v. I.N.S., 200 F.3d 603 (9th Cir. 1999). The

BIA has not addressed Petitioner’s argument that he did not receive notice of his

right to appeal.

      We remand to the BIA for reconsideration of Petitioner’s appeal of his final

order of removal so that the BIA may address whether a proper notice of his right

to appeal was given in 1996 and, if not, what effect that finding has on the analysis

as to whether Petitioner’s removal order resulted in a gross miscarriage of justice.

      Petition in No. 16-70399 is GRANTED. Petition in No. 18-71633 is

DENIED.




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