Ciro Flores-Flores sought review of a Board of Immigration Appeals decision that denied his motion to reconsider a 2009 ruling. That original ruling had dismissed his appeal from an Immigration Judge's denial of cancellation of removal. The denial was based on a finding that Flores failed to demonstrate ten years of continuous physical presence in the United States immediately preceding his application. Although Flores had first arrived in the U.S. in 1995 or 1996, he conceded that he voluntarily departed the country from April to September 1999. This departure broke the continuity of his physical presence. He applied for cancellation of removal in 2008, less than ten years after his return. Flores argued that the notice to issue issued in 2006 failed to trigger the stop-time rule under the Supreme Court's decision in Pereira v. Sessions, claiming the agency denied his application solely due to an erroneous application of that rule. However, his motion to reconsider only sought to revisit the 2009 decision based on Pereira and did not file a motion to reopen to reapply for relief.
The panel reviewed the BIA's denial of the motion to reconsider for abuse of discretion. To be eligible for cancellation of removal, a noncitizen must show they have been physically present in the United States for a continuous period of not less than ten years immediately preceding the date of their application. The court noted that Flores' voluntary departure in 1999 broke this continuity. Flores argued that Pereira v. Sessions meant the notice to appear issued in 2006 did not trigger the stop-time rule, which would theoretically extend his continuous presence. However, the court reasoned that Pereira does not change the fact that Flores lacked ten years of continuous physical presence immediately preceding his 2008 application. The time between his September 1999 reentry and his 2008 application was still less than ten years. Therefore, the BIA did not abuse its discretion in denying the motion. Additionally, the court addressed the BIA's refusal to sua sponte reopen the case. The Ninth Circuit has jurisdiction to review such refusals only when the agency erroneously believes the law forbids it from exercising discretion. Here, the BIA concluded that Flores had not demonstrated an exceptional situation justifying the exercise of sua sponte authority. Because the BIA did not claim it was legally barred from acting, but rather exercised its discretion based on the facts, the court lacked jurisdiction to review that specific aspect of the decision.
The petition is denied in part and dismissed in part. The original denial of cancellation of removal remains in effect. Flores is barred from obtaining cancellation of removal based on the current record because he cannot meet the ten-year continuous physical presence requirement. The decision leaves open the question of whether the BIA would have exercised sua sponte authority in different circumstances, but confirms that the Ninth Circuit cannot review such discretionary refusals unless the agency claims a legal bar exists.
Podcast (federal-narrative-summaries): Play in new window | Download