Ezequiel Montes-Sanchez v. Loretta E. Lynch
670 F. App'x 511
| 9th Cir. | 2016Background
- Petitioner Ezequiel Montes-Sanchez, a Mexican national, appealed the IJ’s removal order and later filed a BIA motion to reconsider; both matters were consolidated for review.
- The BIA dismissed his appeal from the IJ’s removal order and denied his motion to reconsider.
- Montes-Sanchez argued he should be eligible for cancellation of removal under the petty-offense exception to INA § 212(a)(2)(A)(ii).
- The government maintained his conviction was covered by the deportability ground in INA § 237(a)(2)(A)(i), making the petty-offense exception inapplicable.
- Montes-Sanchez raised additional contentions about the record of conviction and whether his offense was a crime involving moral turpitude (CIMT) that were not presented to the IJ or the BIA.
- The BIA denied the motion to reconsider because Montes-Sanchez offered a new legal theory rather than identifying errors of fact or law in the prior BIA decision.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the petty-offense exception to INA § 212(a)(2)(A)(ii) makes Montes-Sanchez eligible for cancellation of removal | Montes-Sanchez: petty-offense exception applies and bars deportability for his conviction | Government: conviction falls under the deportability provision in INA § 237(a)(2)(A)(i), so the petty-offense exception does not make him eligible | Held: Petty-offense exception does not apply; conviction covered by § 237(a)(2)(A)(i) (denied in part) |
| Whether the court can review Montes-Sanchez’s challenges to the record of conviction and CIMT | Montes-Sanchez: these issues should be reviewed on appeal | Government: issues were not exhausted before the BIA, so this court lacks jurisdiction | Held: Claims unexhausted; court lacks jurisdiction to review them (dismissed in part) |
| Whether the BIA abused its discretion by denying the motion to reconsider | Montes-Sanchez: BIA should have reconsidered based on his argument | Government: motion raised a new legal theory rather than pointing to errors in the BIA’s prior decision | Held: No abuse of discretion; motion properly denied because it failed to identify errors of fact or law |
Key Cases Cited
- Mohammed v. Gonzales, 400 F.3d 785 (9th Cir. 2005) (standard of review: de novo for legal questions; abuse of discretion for motions to reconsider)
- Mancilla-Delafuente v. Lynch, 804 F.3d 1262 (9th Cir. 2015) (petty-offense exception inapplicable where conviction is potentially punishable by one year and covered by deportability ground)
- Arsdi v. Holder, 659 F.3d 925 (9th Cir. 2011) (failure to raise issue before the BIA constitutes failure to exhaust and bars appellate review)
- Mutuku v. Holder, 600 F.3d 1210 (9th Cir. 2010) (exception where issue is raised before the IJ and the BIA adopts the IJ’s reasoning)
- Membreno v. Gonzales, 425 F.3d 1227 (9th Cir. 2005) (motions to reconsider are limited to correcting errors of fact or law in the prior decision)