                              NOT FOR PUBLICATION                        FILED
                    UNITED STATES COURT OF APPEALS                       MAY 21 2018
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                              FOR THE NINTH CIRCUIT

MOUSA ELIAS HANANI, AKA Mousa                   No.    16-70804
Hanani,
                                                Agency No. A041-528-041
                Petitioner,

 v.                                             MEMORANDUM*

JEFFERSON B. SESSIONS III, Attorney
General,

                Respondent.

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

                               Submitted May 15, 2018**


Before:      SILVERMAN, BEA, and WATFORD, Circuit Judges

      Mousa Elias Hanani, a native and citizen of Syria, petitions for review of the

Board of Immigration Appeals’ (“BIA”) order denying his motion to reopen and

reconsider. We have jurisdiction under 8 U.S.C. § 1252. We review for abuse of



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
discretion the denial of a motion to reopen, and review de novo questions of law.

Bonilla v. Lynch, 840 F.3d 575, 581-82 (9th Cir. 2016). We grant the petition for

review and remand.

      Hanani has waived any challenge to the BIA’s determination that his motion

to reopen and reconsider was untimely. See Rizk v. Holder, 629 F.3d 1083, 1091

n.3 (9th Cir. 2011) (issues not raised in an opening brief are waived).

      The Court has jurisdiction to review the reasoning behind the BIA’s denial

of sua sponte reopening for legal or constitutional error. Bonilla, 840 F.3d at 588.

Here the BIA erred when it relied on Hanani’s previous sentence to pay $100 in

restitution, submit to drug testing, and abstain from drug and alcohol use in

determining that his conviction under California Health and Safety Code

§ 11377(A) remained valid for immigration purposes. The record reflects that the

sentencing court subsequently vacated these conditions, and Hanani’s sole

sentencing condition was enrollment in counseling. Accordingly, we remand so

that the BIA may analyze the correct sentence in support of its sua sponte

determination. See Id. (“If, upon exercise of its jurisdiction, this court concludes

that the Board relied on an incorrect legal premise, it should remand to the BIA so

it may exercise its authority against the correct legal background.” (citation and

internal quotation omitted)).

      PETITION FOR REVIEW GRANTED; REMANDED.


                                           2                                    16-70804
