NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MAXIMILIANO AGUILAR-MANZO,

Petitioner,

v.

MERRICK B. GARLAND, Attorney 

General,

Respondent.

No. 22-54

Agency No. A200-242-893

MEMORANDUM*

On Petition for Review of an Order of the

Board of Immigration Appeals

Submitted April 14, 2023**

San Francisco, California

Before: S.R. THOMAS and H.A. THOMAS, Circuit Judges, and RAKOFF***, 

District Judge.

Maximiliano Aguilar-Manzo petitions for review of an order of the Board 

of Immigration Appeals (BIA). That order denied Aguilar-Manzo’s motion to 

reconsider the BIA’s dismissal of his appeal of an immigration judge’s denial of 

* 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 Jed S. Rakoff, United States District Judge for the 

Southern District of New York, sitting by designation.

FILED

APR 19 2023

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

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his motion to reopen. We have jurisdiction under 8 U.S.C. § 1252. We review 

the denial of a motion to reconsider “for an abuse of discretion, reversing when 

the denial is arbitrary, irrational, or contrary to law.” Lona v. Barr, 958 F.3d 

1225, 1229 (9th Cir. 2020) (cleaned up). We deny in part and grant in part the 

petition for review, and remand to the BIA to consider the factors favoring 

Aguilar-Manzo’s petition.

1. The BIA abused its discretion by failing to “proper[ly] 

consider[]. . . all factors, both favorable and unfavorable,” when it reviewed 

Aguilar-Manzo’s motion for reconsideration. Ali v. Holder, 637 F.3d 1025, 

1032 (9th Cir. 2011) (citing Franco-Rosendo v. Gonzales, 454 F.3d 965, 967–

68 (9th Cir. 2006)). The BIA concluded that Aguilar-Manzo “affirmatively 

waived the opportunity to apply for cancellation of removal” because he 

“withdrew his applications for relief.” But the agency erred when it failed to 

consider Aguilar-Manzo’s contention that he withdrew his applications because 

he was under the mistaken impression that he had insufficient evidence of his 

continuous physical presence to qualify for cancellation of removal.

1

The BIA also concluded that Aguilar-Manzo was statutorily ineligible for 

cancellation of removal because he “did not comply with the voluntary 

departure order.” But it failed to address whether Aguilar-Manzo’s motion to 

1 At the time, Pereira v. Sessions, 138 S. Ct. 2105 (2018), had not yet clarified 

that a defective Notice to Appear does not trigger the stop-time rule for accrual 

of continuous physical presence.

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reopen was filed “prior to the expiration of the period allowed for voluntary 

departure” such that it “terminat[ed] the grant of voluntary departure.” 8 C.F.R. 

§ 1240.26(e)(1). In particular, the BIA failed to consider a declaration from 

Aguilar-Manzo’s counsel attesting, under penalty of perjury, to an attempt to 

file Aguilar-Manzo’s motion for reopening prior to the termination of AguilarManzo’s period for voluntary departure.

The Government argues that Aguilar-Manzo has waived any challenge to 

the BIA’s denial of his motion to reconsider. But Aguilar-Manzo’s brief 

specifically asserts that the withdrawal of his cancellation of removal 

application and his failure to voluntarily depart—both of which the BIA relied 

upon as bases for denying his motion for reconsideration—occurred because the 

Supreme Court had not yet clarified the effect of a deficient Notice to Appear 

on the stop-time rule for cancellation of removal. Accordingly, AguilarManzo’s challenge is not waived. Cf. Arpin v. Santa Clara Valley Transp. 

Agency, 261 F.3d 912, 919 (9th Cir. 2001) (“[I]ssues which are not specifically 

and distinctly argued and raised in a party’s opening brief are waived.”).

2. The BIA did not err in rejecting Aguilar-Manzo’s jurisdictional 

argument, which, in any event, has been forfeited. See id.; see also United 

States v. Bastide-Hernandez, 39 F.4th 1187, 1188 (9th Cir. 2022) (en banc)

(“[T]he failure of [a Notice to Appear] to include time and date information 

does not deprive the immigration court of subject matter jurisdiction . . . .”).

PETITION DENIED IN PART; GRANTED IN PART.

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