JUAN MORENO V. MERRICK GARLAND ( 2022 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 30 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JUAN FERNANDO MORENO, AKA Juan No. 18-72537
Moreno,
Agency No. A200-246-777
Petitioner,
v. MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted June 14, 2022**
Pasadena, California
Before: RAWLINSON and CHRISTEN, Circuit Judges, and SIMON,*** District
Judge.
Juan Fernando Moreno (Moreno), a native and citizen of Mexico, petitions
*
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 Michael H. Simon, United States District Judge for the
District of Oregon, sitting by designation.
for review of a Board of Immigration Appeals (BIA) decision denying his
application for cancellation of removal. He makes two arguments. First, Moreno
contends that the BIA abused its discretion by affirming the decision of the
Immigration Judge (IJ) denying Moreno’s request for an additional continuance
after several had been granted already. Second, Moreno challenges the denial of
his motion to remand sua sponte. To the extent we have jurisdiction, it is under 8
U.S.C. § 1252. We DENY in part and DISMISS in part.
1. We review an agency’s denial of a motion for continuance for abuse
of discretion. Pleitez-Lopez v. Barr, 935 F.3d 716, 719 (9th Cir. 2019).
The BIA did not abuse its discretion by affirming the IJ’s denial of Moreno’s
motion for an additional continuance. In December 2011, the Department of
Homeland Security (DHS) commenced removal proceedings against Moreno.
Between 2012 and 2016, Moreno received several continuances, including three
continuances to permit him to retain counsel, two continuances for attorney
preparation (one of which was caused by Moreno’s failure to respond to his
counsel for more than eight months), and one continuance to wait for his United
States citizen child to be born. At his August 2016 merits hearing, Moreno asked
for a further continuance to begin seeking expungement of a 2012 conviction, after
which he hoped to request a favorable exercise of the DHS’s prosecutorial
discretion. Counsel for DHS responded that based on her review, DHS would
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likely not grant Moreno prosecutorial discretion even if he successfully expunged
his conviction. The IJ denied Moreno’s request for lack of good cause. At the
conclusion of the hearing, Moreno reiterated his request for a continuance, adding
that he needed time to divorce his wife and marry his girlfriend so that her two
United States citizen daughters would become his stepdaughters and additional
qualifying relatives. The IJ denied that request, finding no good cause and noting
that the case had been on the docket since 2012.
The BIA did not abuse its discretion by agreeing that Moreno failed to show
good cause. The possibility that Moreno might expunge his conviction and then
obtain prosecutorial discretion from DHS is not good cause. See Singh v. Holder,
638 F.3d 1264, 1274 (9th Cir. 2011) (“[T]he IJ was not required to grant a
continuance based on . . . speculation[].”). Also, Moreno had four years to pursue
this relief and at least one year to prepare for his merits hearing.
Moreno’s reliance on Malilia v. Holder, 632 F.3d 598 (9th Cir. 2011), is
misplaced. Unlike the petitioner in Malilia, Moreno moved for additional
continuances and his need for more time was attributable to his own delay, not the
agency’s. Id. at 604. Moreno also contends that the BIA might have been
improperly influenced by the fact that his new qualifying relatives would be
stepchildren, not biological children. Moreno, however, cites no evidence to
support his statement and none appears in the record.
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2. Under 8 U.S.C. § 1229a(c)(7)(C)(i), a motion to reopen must be filed
within 90 days of the final order of removal. “The formal requirements of the
motion to reopen and those of the motion to remand are for all practical purposes
the same.” Rodriguez v. I.N.S., 841 F.2d 865, 867 (9th Cir. 1987). Thus, motions to
remand must also comply with the 90-day deadline. Ramirez-Alejandre v. Ashcroft,
319 F.3d 365, 382 (9th Cir. 2003).
Even after 90 days have passed, the BIA retains inherent authority to reopen
or remand a case in exceptional circumstances. Bonilla v. Lynch, 840 F.3d 575,
584-85 (9th Cir. 2016). A motion to reopen filed after the 90-day deadline is
known as a “motion to reopen sua sponte.” Id.We lack jurisdiction, however, to review a denial of a motion to remand sua
sponte for abuse of discretion. Ekimian v. I.N.S., 303 F.3d 1153, 1159 (9th Cir.
2002); Bonilla, 840 F.3d at 586 (citing Ekimian). We retain jurisdiction over such a
denial only to determine whether the agency rendered its decision based on a
misunderstanding of law, a change in the law, or to avoid constitutional error.
Bonilla, 840 F.3d at 588; see also Lona v. Barr, 958 F.3d 1225, 1227 (9th Cir.
2020) (“BIA denials of sua sponte relief premised on legal or constitutional error
remain the one narrow exception to our rule that the agency’s sua sponte authority
is not subject to judicial review.” (quotation marks omitted)). In his petition,
Moreno argues only that the denial of the motion to remand sua sponte was an
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abuse of discretion. He has not identified any misunderstanding of law, change in
the law, or constitutional error, and we have found none. Accordingly, we do not
have jurisdiction to review the challenged denial of the motion to remand sua
sponte.
PETITION DENIED IN PART AND DISMISSED IN PART.
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