The Ninth Circuit denied in part and dismissed in part the petition for review of a Board of Immigration Appeals decision. The court held that the BIA did not abuse its discretion in refusing to reconsider its prior ruling.
Ciro Flores-Flores sought cancellation of removal based on continuous physical presence. To qualify, he needed ten years of presence immediately preceding his application. Flores conceded that a voluntary departure from April to September 1999 broke that continuity.
He applied for relief in 2008. This was less than ten years after his return to the country in September 1999. The BIA had previously denied his appeal in 2009 based on this lack of continuous presence.
Flores argued that a 2006 notice to appear failed to trigger the stop-time rule under *Pereira v. Sessions*. He contended the agency denied his application solely due to this error. However, his motion to reconsider did not include a motion to reopen to reapply for relief.
The Ninth Circuit noted that *Pereira* does not alter the fact that Flores lacked the required ten years of continuous physical presence immediately preceding his 2008 application. The time between his 1999 reentry and his application remained under the statutory threshold.
The court also dismissed the portion of the petition challenging the BIA’s refusal to sua sponte reopen the case. The BIA concluded Flores had not demonstrated an exceptional situation justifying such action. The Ninth Circuit held this discretionary refusal was beyond its jurisdiction for review.