Ninth Circuit Denies Petition for Review in Ciro Flores-Flores v. Todd Blanche

Ciro Flores-Flores sought review of a Board of Immigration Appeals ("BIA") decision that denied his motion to reconsider a prior ruling dismissing his appeal from an Immigration Judge's denial of cancellation of removal. The underlying dispute centered on whether Flores met the statutory requirement of ten years of continuous physical presence in the United States to be eligible for relief.

Flores conceded that he voluntarily left the country from April until September 1999, a departure that broke his continuous physical presence. He applied for cancellation of removal in 2008, less than ten years after his return to the country in September 1999.

Flores argued that the notice to appear issued in 2006 failed to trigger the stop-time rule under Pereira v. Sessions, 585 U.S. 198 (2018). He contended that the agency denied his application solely because of an erroneous application of the stop-time rule. However, his motion to reconsider argued only that the BIA should reconsider its 2009 decision in light of Pereira; he did not file a motion to reopen to reapply for cancellation of removal.

The Ninth Circuit held that the BIA did not abuse its discretion in declining to reconsider its 2009 decision because the outcome did not depend on any misapplication of the stop-time rule. The court noted that Pereira does not change the fact that Flores lacked ten years of continuous physical presence immediately preceding the date of his 2008 application.

The time between Flores' September 1999 reentry and his 2008 application for relief remained less than ten years. Accordingly, the court concluded that the BIA properly denied the motion to reconsider on the merits.

The court also addressed the BIA's refusal to sua sponte reopen the case. It held that it lacks jurisdiction to review the BIA's discretionary use of sua sponte reopening or reconsideration authority, except where the agency erroneously believed the law forbade it from exercising discretion.

The BIA concluded that Flores had not demonstrated an exceptional situation justifying the exercise of sua sponte authority and did not offer a further legal or constitutional basis for refusing to exercise that authority. The Ninth Circuit dismissed this portion of the petition for lack of jurisdiction.

The panel denied in part Flores' petition as to his motion to reconsider and dismissed in part his petition seeking review of the BIA's exercise of sua sponte discretion.