Eriberto Errera v. Eric Holder, Jr.

FILED

NOT FOR PUBLICATION SEP 10 2012

MOLLY C. DWYER, CLERK

UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS

FOR THE NINTH CIRCUIT

ERIBERTO ERRERA, AKA Eriberto No. 10-72835 Errera-Longoria, Agency No. A077-138-504 Petitioner,

v. MEMORANDUM *

ERIC H. HOLDER, Jr., Attorney General,

Respondent.

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

Argued and Submitted March 14, 2012 San Francisco, California

Before: CALLAHAN and BEA, Circuit Judges, and BENNETT, District Judge.**

Eriberto Errera seeks review of an order by the Board of Immigration

Appeals (“BIA”) determining that he was removable and ineligible for relief from

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** The Honorable Mark W. Bennett, District Judge for the U.S. District Court for Northern Iowa, sitting by designation. removal. He argues that he is entitled to relief because the Department of

Homeland Security (“DHS”): (1) improperly sought to introduce evidence that it

had failed to present…

*783 MEMORANDUM **

Eriberto Errera seeks review of an order by the Board of Immigration Appeals (“BIA”) determining that he was removable and ineligible for relief from removal. He argues that he is entitled to relief because the Department of Homeland Security (“DHS”): (1) improperly sought to introduce evidence that it had failed to present to the Immigration Judge (“IJ”); and (2) provided him with an incomplete Form 1-294 when he was removed in 2003. We deny the petition in part and dismiss it in part.

1. Even accepting that DHS’s motion to reconsider (which the IJ denied) was improper, Errera was not prejudiced by the motion because the BIA issued a sua sponte remand to the IJ for further fact-finding. Accordingly, to prevail Errera must show that the BIA exceeded its authority in issuing a sua sponte remand.

Our opinion in Rodriguez v. Holder, 683 F.3d 1164 (9th Cir.2012), holds that the BIA has the authority pursuant to 8 C.F.R. § 1003.1 (d)(3)(iv) to issue a sua sponte remand. “Where the IJ has not made a finding of fact on a disputed matter, and such a finding is necessary to resolution of the case, the BIA must remand to the IJ to make the required finding.” Id. at…

concurring:

While we all agree that Errera is not entitled to relief, I write to indicate'that, unlike my colleagues, I do not think that our decision in Rodriguez v. Holder, 683 F.3d 1164 (9th Cir.2012) is wrong, or that the Board of Immigration Appeals (“BIA”) lacks the authority to issue a sua sponte remand.

Perhaps 8 C.F.R. § 1003.1 (d)(3)(iv) is not a model of clarity. Nonetheless, its provision that, “[i]f further factfinding is needed in a particular case, the Board may remand the proceeding to the immigration judge, or, as appropriate, to the Service,” certainly admits to the interpretation that the BIA may issue a sua sponte remand. Indeed, Judge Bennett concedes as much.

If the regulation — to the extent that it does not simply give the BIA authority to issue a sua sponte remand — is ambiguous, there are several reasons for holding that it does authorize sua sponte remands. The Department of Homeland Security (“DHS”) has interpreted the regulation as authorizing sua sponte remands. See In re S-H-, 23 I & N. Dec. 462 (BIA 2002). The Second Circuit has held that the BIA may issue a sua sponte remand, Padmore v. Holder, 609 F.3d 62, 70 (2d Cir.2010), and we so implied in…

joined by BEA, Circuit Judge, concurring:

I agree with the majority that this case should not be stayed pending the en banc proceedings in Garfias-Rodriguez v. Holder and that Errera’s claim concerning his incomplete Form 1-294 should be dismissed.

I write separately, however, as to Err-era’s remaining challenge to the Board of Immigration Appeals’s (“BIA”) final order of removal. Specifically, Errera argues that an immigration judge (“IJ”) correctly adjusted Errera’s status under 8 U.S.C. § 1255 (f) in his initial immigration court proceedings in 2006. Errera maintains that the Department of Homeland Security’s (“DHS”) motion to reconsider and appeal of the IJ’s order, in which DHS argued that Errera was inadmissible due to a 2003 order of removal, were improper under the regulations because DHS premised its arguments on evidence of Errera’s 2003 removal that it failed to present to the IJ initially. Errera asserts that the *786 BIA violated its own regulations and Err-era’s due process rights when it remanded, sua sponte, his case for further factfinding and permitted DHS to present evidence of Errera’s 2003 removal to the IJ, who then ordered Errera removed.

I agree with my…