MOUSA ELIAS HANANI, AKA Mousa Hanani v. JEFFERSON B. SESSIONS III, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MOUSA ELIAS HANANI, AKA Mousa
Hanani,
Petitioner,
v.
JEFFERSON B. SESSIONS III, Attorney
General,
Respondent.
No. 16-70804
Agency No. A041-528-041
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted May 15, 2018**
Before: SILVERMAN, BEA, and WATFORD, Circuit Judges
Mousa Elias Hanani, a native and citizen of Syria, petitions for review of the
Board of Immigration Appeals’ (“BIA”) order denying his motion to reopen and
reconsider. We have jurisdiction under 8 U.S.C. § 1252. We review for abuse 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).
FILED
MAY 21 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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discretion the denial of a motion to reopen, and review de novo questions of law.
Bonilla v. Lynch, 840 F.3d 575, 581-82 (9th Cir. 2016). We grant the petition for
review and remand.
Hanani has waived any challenge to the BIA’s determination that his motion
to reopen and reconsider was untimely. See Rizk v. Holder, 629 F.3d 1083, 1091
n.3 (9th Cir. 2011) (issues not raised in an opening brief are waived).
The Court has jurisdiction to review the reasoning behind the BIA’s denial
of sua sponte reopening for legal or constitutional error. Bonilla, 840 F.3d at 588.
Here the BIA erred when it relied on Hanani’s previous sentence to pay $100 in
restitution, submit to drug testing, and abstain from drug and alcohol use in
determining that his conviction under California Health and Safety Code
§ 11377(A) remained valid for immigration purposes. The record reflects that the
sentencing court subsequently vacated these conditions, and Hanani’s sole
sentencing condition was enrollment in counseling. Accordingly, we remand so
that the BIA may analyze the correct sentence in support of its sua sponte
determination. See Id. (“If, upon exercise of its jurisdiction, this court concludes
that the Board relied on an incorrect legal premise, it should remand to the BIA so
it may exercise its authority against the correct legal background.” (citation and
internal quotation omitted)).
PETITION FOR REVIEW GRANTED; REMANDED.

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