NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS FEB 19 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT MARVIN ANTONIO FRANCO- No. 16-71558 BARDALES, AKA Marvin Antonio Franco, Agency No. A071-586-661 Petitioner, v. MEMORANDUM* WILLIAM BARR, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted October 11, 2018** Seattle, Washington Before: PAEZ and BEA, Circuit Judges, and ROYAL,*** District Judge. Marvin Franco-Bardales (“Franco-Bardales”) petitions for review the Board of Immigration Appeals (“BIA”)’s denial of his motion to reconsider his final * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously voted to grant Petitioner’s motion to submit the case on the briefs, without oral argument. See Fed. R. App. P. 34(a)(1). *** The Honorable C. Ashley Royal, United States District Judge for the Middle District of Georgia, sitting by designation. order of removal based on a change in law. We grant the petition in part and remand to the BIA. 1. Franco-Bardales is a citizen of Guatemala who has lived in the United States since entering without inspection in 1983. After he was convicted and sentenced for violations of Oregon Stat. § 163.205 (first degree criminal mistreatment) and § 163.165 (third degree assault), the Department of Homeland Security (“DHS”) initiated removal proceedings against him in 2010. Franco- Bardales applied for adjustment of status as relief from removal. Because he had conceded that Oregon third degree assault was a crime involving moral turpitude,1 he also had to apply for a waiver of inadmissibility under 8 U.S.C. § 1182(h)(1)(B) (“212(h) waiver”) in order to adjust his status. There are two distinct burdens of proof for applicants seeking to obtain a 212(h) waiver: normally, an applicant must show “extreme hardship” to a qualifying family member; however, an applicant who has committed a “violent or dangerous crime” must show a heightened burden of “exceptional and extremely unusual hardship.” Compare 8 U.S.C. § 1182(h)(1)(B) with 8 C.F.R. § 1212.7(d). The immigration judge (“IJ”) concluded that Franco-Bardales had committed a “violent and dangerous crime,” could not meet his burden of proof to 1 Under 8 U.S.C. § 1182(a)(2)(A)(i)(I), a conviction of a crime involving moral turpitude renders a noncitizen inadmissible. 2 merit a 212(h) waiver, and denied his adjustment application. Franco-Bardales was not successful in his appeal to the BIA, nor in his 2011 motion to reopen. On his consolidated appeal, we denied both petitions for review. Franco-Bardales v. Holder, 599 F. App’x 684, 685 (9th Cir. 2015) (unpublished).2 In 2015, Franco-Bardales filed another motion before the BIA, this time asking for reconsideration of its 2011 decision in his case, citing three recent opinions from the Ninth Circuit and Supreme Court. The BIA denied his motion to reconsider, which is the subject of our review. 2. The parties do not dispute whether the BIA erred in denying the motion to reconsider based on untimeliness. Rather, the issue before ...
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