                                                                            FILED
                            NOT FOR PUBLICATION
                                                                            FEB 11 2016
                   UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


EDMUNDO EVAN-SANGUINO,                           No. 09-72980

              Petitioner,                        Agency No. A078-739-220

 v.
                                                 MEMORANDUM*
LORETTA E. LYNCH, Attorney
General,

              Respondent.


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

                     Argued and Submitted November 5, 2015
                                Portland, Oregon

Before:       KOZINSKI, BERZON and WATFORD, Circuit Judges.


      1. This case is REMANDED to the Board of Immigration Appeals for

further proceedings in light of Correo-Ruiz v. Lynch, 809 F.3d 543 (9th Cir. 2015).

The Board shall grant Petitioner an opportunity to supplement the record.




          *
          This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
                                                                              page 2
       2. We reject Evan-Sanguino’s argument that the Board denied relief in

derogation of the law of the case. See Merritt v. Mackey, 932 F.2d 1317, 1320

(9th Cir. 1991) (explaining the law-of-the-case doctrine and discussing its

discretionary nature). There was no law of the case because neither our remand

order nor the first Board decision definitively established that Evan-Sanguino was

entitled to relief.


       3. We also reject Evan-Sanguino’s argument that the Board deprived him of

due process by deciding his appeal based on the intervening authority of Matter of

Briones, 24 I. & N. Dec. 355 (BIA 2007), without allowing him to brief the

implications of that case. Even if there were a procedural problem, Evan-Sanguino

cannot make the required showing of prejudice. See United States v. Cerda-Pena,

799 F.2d 1374, 1378–79 (9th Cir. 1986). Evan-Sanguino complains that he was

never afforded an opportunity to argue that Briones should not apply retroactively

in his case. Evan-Sanguino will have an opportunity to make that argument on

remand.


       Petition for review GRANTED. REMANDED with instructions.
