NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MAXIMILIANO AGUILAR

- MANZO ,

Petitioner,

v. MERRICK B. GARLAND , A ttorney 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 den ied Aguilar

- Manzo’s motion to reconsider the BIA’s dismissal o f 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 APPEALS2 22

- 54

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 t o 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

. T he 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 application s 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 inelig ible 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 t ime, Pereira v. Sessions , 138 S. Ct. 2105 (2018), had not yet clarified that a defective N otice t o A ppear does not trigger the stop

- time rule for accrual of continuous physical presence.3 22

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reopen was filed “prior to the expiration of the period allowed for voluntary departure” such that i t “ 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 reopenin g prior to the termination of Aguilar

Manzo’s period for voluntary departure. The Government argues that Aguilar

- Manzo has waived any challenge to the BIA’s den ial of his motion to reconsider. But Aguilar

- Manzo’s brief specifically asserts that the withdra wal 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 No tice to Appear on the stop

- time rule for cancellation of removal. Accordingly, Aguilar

Manzo’s c hallenge 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 a rgued 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
.