Opinion
No. 09-72980
02-11-2016
EDMUNDO EVAN-SANGUINO, Petitioner, v. LORETTA E. LYNCH, Attorney General, Respondent.
NOT FOR PUBLICATION
Agency No. A078-739-220 MEMORANDUM On Petition for Review of an Order of the Board of Immigration Appeals Argued and Submitted November 5, 2015 Portland, Oregon Before: KOZINSKI, BERZON and WATFORD, Circuit Judges.
This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. --------
1. This case is REMANDED to the Board of Immigration Appeals for further proceedings in light of Correo-Ruiz v. Lynch, 809 F.3d 543 (9th Cir. 2015). The Board shall grant Petitioner an opportunity to supplement the record.
2. We reject Evan-Sanguino's argument that the Board denied relief in derogation of the law of the case. See Merritt v. Mackey, 932 F.2d 1317, 1320 (9th Cir. 1991) (explaining the law-of-the-case doctrine and discussing its discretionary nature). There was no law of the case because neither our remand order nor the first Board decision definitively established that Evan-Sanguino was entitled to relief.
3. We also reject Evan-Sanguino's argument that the Board deprived him of due process by deciding his appeal based on the intervening authority of Matter of Briones, 24 I. & N. Dec. 355 (BIA 2007), without allowing him to brief the implications of that case. Even if there were a procedural problem, Evan-Sanguino cannot make the required showing of prejudice. See United States v. Cerda-Pena, 799 F.2d 1374, 1378-79 (9th Cir. 1986). Evan-Sanguino complains that he was never afforded an opportunity to argue that Briones should not apply retroactively in his case. Evan-Sanguino will have an opportunity to make that argument on remand.
Petition for review GRANTED. REMANDED with instructions.