                                                                           FILED
                            NOT FOR PUBLICATION                            AUG 01 2013

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



                            FOR THE NINTH CIRCUIT


RAFAEL VIZCARRA-AYALA, AKA                       No. 10-72294
Rafael Viscarra,
                                                 Agency No. A092-173-693
              Petitioner,

  v.                                             MEMORANDUM*

ERIC H. HOLDER, Jr., Attorney General,

              Respondent.



RAFAEL VIZCARRA-AYALA, AKA                       No. 10-73839
Rafael Viscarra,
                                                 Agency No. A092-173-693
              Petitioner,

  v.

ERIC H. HOLDER, Jr., Attorney General,

              Respondent.


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



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
                             Submitted May 9, 2013**
                               Pasadena, California

Before: PREGERSON and FISHER, Circuit Judges, and DANIEL, Senior District
Judge.***

      Rafael Vizcarra-Ayala, a legal permanent resident of the United States,

petitions for review of (1) the Board of Immigration Appeals’ (BIA) dismissal of

his appeal of his removal order and (2) the BIA’s subsequent denial of his motion

to reconsider. We have jurisdiction under 8 U.S.C. § 1252. We grant the petition.

      As background, in May 2008, the BIA terminated ongoing removal

proceedings against Vizcarra-Ayala, which were based on Vizcarra-Ayala’s 2005

conviction for forgery in violation of California Penal Code § 475(c). The BIA did

so in light of this court’s decision in Vizcarra-Ayala v. Mukasey, 514 F.3d 870 (9th

Cir. 2008), where we granted the petition for review, holding that California’s

forgery statute is not categorically an aggravated felony and that the government

failed to establish Vizcarra-Ayala’s removability under the modified categorical

approach. In July 2008, the Department of Homeland Security (DHS) filed a

motion to reopen proceedings, charging Vizcarra-Ayala with removability on two


        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
        ***
             The Honorable Wiley Y. Daniel, Senior District Judge for the U.S.
District Court for Colorado, sitting by designation.

                                         2
additional grounds. The grounds were based on Vizcarra-Ayala’s convictions for

burglary in October 1992 and controlled substance possession in July 1998. The

BIA granted DHS’s motion to reopen, citing its broad sua sponte authority to do

so, and remanded to the IJ. On remand, the IJ found Vizcarra-Ayala removable

based on the controlled substance conviction and ordered him deported to Mexico.

Vizcarra-Ayala appealed the IJ’s removal order. The BIA dismissed his appeal.

Vizcarra-Ayala then moved for reconsideration. The BIA denied the motion for

reconsideration.

      We hold that the BIA improperly reopened removal proceedings against

Vizcarra-Ayala, and therefore abused its discretion in denying Vizcarra-Ayala’s

subsequent appeal and motion to reconsider.

      First, to the extent that the BIA reopened proceedings sua sponte, the BIA

abused its discretion because Vizcarra-Ayala’s case did not present a “truly

exceptional situation[]”, In re G-D-, 22 I. & N. Dec. 1132, 1134 (B.I.A. 1999),

where reopening would “serve the interest of justice,” In re X-G-W, 22 I. & N.

Dec. 71, 73 (B.I.A. 1998). The BIA said our court’s prior decision in Vizcarra-

Ayala v. Mukasey presented an exceptional circumstance, but it did not. It is not

exceptional for the Ninth Circuit to decide that a state criminal statute falls under

either the categorical or modified categorical approach in determining whether a


                                           3
crime is an aggravated felony for immigration purposes. Cf. In re G-D-, 22 I. & N.

Dec. at 1135 (holding that a change in law constitutes an exceptional circumstance

when it effects “a fundamental change in the principles of the law of asylum”

(emphasis added)). Vizcarra-Ayala v. Mukasey created no fundamental change in

the principles of immigration law. Because no truly exceptional circumstances

were present, the BIA abused its discretion in reopening Vizcarra-Ayala’s removal

proceedings.

      Second, the BIA did not properly reopen proceedings sua sponte. In

response to the government’s motion to reopen, the BIA stated “we will grant the

motion to reopen” and ordered “[t]he motion is granted.” (emphases added).

Thus, by its express language, the BIA did not reopen the proceedings on its own

motion, but rather granted the government’s motion to reopen. In granting the

government’s motion, the BIA abused its discretion because the government’s

motion was not based on new evidence. See 8 C.F.R. § 1003.2(c) (“A motion to

reopen proceedings shall not be granted unless it appears to the Board that

evidence sought to be offered . . . was not available and could not have been

discovered or presented at the former hearing . . . .”).

      For the foregoing reasons, we GRANT the petition for review and hold that

the BIA abused its discretion in reopening proceedings against Vizcarra-Ayala.


                                           4
The BIA therefore also abused its discretion in denying Vizcarra-Ayala’s

subsequent appeals of the removal order and motion to reconsider. We

REVERSE the BIA’s denial of these appeals and REMAND for the termination

of Vizcarra-Ayala’s removal proceedings.




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