NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
SALVADOR TRUJILLOS SILVA,

Petitioner,

v. MERRICK B. GARLAND, Attorney General, Respondent. No. 18

- 71134 Agency No. A074

- 797

- 189

MEMORANDUM *

On Petition for Review of an Order of the Board of Immigration Appeals Submitted March 14, 2022 * * San Francisco, California Before: W. FLETCHER and COLLINS, Circuit Judges, and FEINERMAN, ** * District Judge. Salvador Trujillos Silva, a native and citizen of Mexico, petitions for review
of an order of the Board of Immigration Appeals (“BIA”) denying his motion to

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36

- 3.

** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).

*** The Honorable Gary Feinerman, United States District Judge for the Northern District of Illinois, sitting by designation. 

# FILED

MAR 16 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS2

reopen his removal proceedings . We have jurisdiction pursuant to 8 U.S.C. § 1252, and we review fo r abuse of discretion the BIA’s denial of Silva’s motion to
reopen. Bonilla v. Lynch , 840 F.3d 575, 581 (9th Cir. 2016). The petition for
review is denied. In 2014, Silva moved the BIA to reopen his removal proceedings so that he
could seek an I

- 601A pr ovisional unlawful presence waiver. At the time, the
govern ing regulation made him ineligible for an I

- 601A waiver unless his removal proceedings were reopened and then administratively closed. See 8 C.F.R. § 212.7(e)(4)(v), (vi) (2014). In a 2014 decision , t he BIA failed to give Silva’ s motion reasoned consideration, so we granted his petition for review and
remanded. Silva v. Sessions , 715 F. App’x 628, 630 (9th Cir. 2017). On remand,
the BIA again denied Silva’s motion, reasoning t hat, under a 2016 amendment to the regulation, Silva “ does not need to have his removal proceedings reopened or administratively closed to be able to apply for a provisional unlawful presence
waiver

. ” Silva then filed the pres en t petition for review

. 1. The petition is not moot. “[A] case becomes moot only when it is impossible for a court to grant any effectual relief whatever to the prevailing party.” Chafin v. Chafin , 568 U.S. 165, 172 (2013) (internal quotation marks
omitt ed). Although the 2016 amendment to the regulation “bears on whether the panel should deny [Silva’s] underlying petition seeking relief from the BIA order3

denying reopening,” that amendment “ does not mean that the [p] etition has been
rendered moot.” Gran ados

- Oseguera v. Mukasey , 546 F.3d 1011, 1015 (9th Cir. 2008). If the BIA had mis interpreted the amended regulation, or otherwise abused its discretion, granting the petition for review and remanding would provide
effectual relief to Silva

. 2. The BIA di d not abuse its discretion in denying the motion to reopen

. Its
decision correctly stated that , under the amended regulation, Silva can apply for an
I

- 601A provisional waiver even with a final order of removal

. Se e 8 C.F.R. § 212.7(e)(4)(iv) (allowing individuals with final orders of removal to seek the provisional waiver if they first obtain consent to reapply for admission under
8 C.F.R. § 212.2(j) )

. It follows that the BIA reasonably concluded that there was no need to reop en and then administratively close his removal proceedings.
3. T he BIA did not err in denying his motion to reopen on remand without
first ordering supplemental briefing on the amended regulation

. See Theagene v.
Gonzales , 411 F.3d 1107, 1113 (9th Cir. 2 005) (“Though a tribunal often requests supplemental briefs in such cases [involving an intervening change in law], applying new law to a pending case without notice does not, under any authority cited to us, offend due process.”)

. Silva could have sought leave to file a supplemental brief after his case was remanded

. See id . (“[P]ublication of controlling legal authority ... provide[s] sufficient notice and an opportunity to4

address the legal issues raised in that authority in a motion ... for leave to file a supplemental brief.”) ; BIA Practice Manual ¶ 4.6(g)(ii ) (“ If a party d iscovers new authority and wishes to file a supplemental brief,

... the party should submit the brief along with a ‘ MOTION TO ACCEPT SUPPLEMENTAL BRIEF ’ ...

. ”).
N othing in the record indicates that he did so

. Cf

. Garcia v. Holder , 621 F.3d 906, 913 (9th Cir . 2010) (holding that , where a petitioner move d to file a supplemental brief, “ the BIA was required to exercise [its] discretion ” whether to consider the
brief ).
PETITION DENIED.