UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT LUCILA MAGANA-MAGANA, No. 23-1887 Agency No. Petitioner, A098-918-838 v. OPINION MERRICK B. GARLAND, Attorney General,

Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals

Submitted October 24, 2024 * Phoenix, Arizona

Filed December 26, 2024 Before: MILAN D. SMITH, JR., BRIDGET S. BADE, and DANIELLE J. FORREST, Circuit Judges.

Opinion by Judge Milan D. Smith, Jr.

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

SUMMARY **

Immigration

Denying in part and dismissing in part Lucila Magana- Magana’s petition for review a decision of the Board of Immigration Appeals, the panel held that the court has jurisdiction to review whether an alien showed “extraordinary circumstances” to waive the one-year motion-to-reopen deadline under the Violence Against Women Act (VAWA), but concluded that the BIA did not abuse its discretion in determining that Magana-Magana failed to meet that standard. The panel explained that the Supreme Court established in Wilkinson v. Garland, 601 U.S. 209 (2024), and Guerrero-Lasprilla v. Barr, 589 U.S. 221 (2020), that the application of a legal standard to undisputed facts—a mixed question—is a legal question this court can review pursuant to 8 U.S.C. § 1252(a)(2)(D). Accordingly, the panel concluded that the extraordinary-circumstances inquiry is a legal standard that can be applied to specific facts. In reaching that conclusion, the panel rejected the Government’s argument that the statute governing the VAWA waiver, 8 U.S.C. § 1229a(c)(7)(C)(iv)(III), commits the decision to the Attorney General’s discretion. The panel explained that this language means that the ultimate waiver decision is discretionary; it does not mean that the

** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. MAGANA-MAGANA V. GARLAND 3

antecedent question of extraordinary circumstances is unreviewable. The panel also rejected the Government’s contention that the term “extraordinary circumstances” is so undefined that it cannot guide judicial review for purposes of § 1252(a)(2)(D), concluding that the standard is akin to those found reviewable in Guerrero-Lasprilla and Wilkinson. Observing the lack of guiding statutory or regulatory factors here, the panel explained that there is no requirement that the standard be exhaustively defined by statute or regulation, and that, in other contexts, courts routinely decide whether “extraordinary circumstances” exist. Finally, the Government suggested that, even if the jurisdiction-stripping provisions were inapplicable, the court would lack jurisdiction because there is no law to apply. The Government pointed to Ekimian v. INS, 303 F.3d 1153 (9th Cir. 2002). There, although the BIA had expressed unwillingness to reopen sua sponte absent “exceptional situations,” this court held that it lacked jurisdiction to review the sua sponte determination because the governing regulation provides no standard. The panel declined to extend Ekimian here, where the legal standard comes directly from the plain text of the statute and is one with which courts are familiar. On the merits, the panel rejected Magana-Magana’s contention that the BIA applied the wrong standard, explaining that the BIA’s single reference to “exceptional” circumstances, rather than “extraordinary,” was a c