Fernando Menendez-Gonzalez v. William Barr , 929 F.3d 1113 ( 2019 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
FERNANDO MENENDEZ-GONZALEZ, No. 15-73869
AKA Fernando Menedez,
Petitioner, Agency No.
A072-062-253
v.
WILLIAM P. BARR, Attorney OPINION
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted January 14, 2019
San Francisco, California
Filed July 11, 2019
Before: J. Clifford Wallace, Richard R. Clifton,
and Michelle T. Friedland, Circuit Judges.
Opinion by Judge Clifton
2 MENENDEZ-GONZALEZ V. BARR
SUMMARY*
Immigration
Denying Fernando Menendez-Gonzalez’s petition for
review of a decision of the Board of Immigration Appeals
denying sua sponte reopening, the panel explained that it had
jurisdiction for the limited purpose of identifying legal or
constitutional error, but concluded that Menendez-Gonzalez
had established no such error through his claims that (1) the
BIA irrationally departed from a settled practice of granting
sua sponte reopening when the conviction underlying a
removal order is vacated, and (2) the BIA violated its
regulations when it failed to remand the case to the
immigration judge for factfinding.
Based on a conviction for cocaine possession, Menendez-
Gonzalez was deported in 1994, but later re-entered the
United States illegally. After his conviction was vacated in
2009 because there was no preliminary hearing transcript to
assess whether he was properly advised of the consequences
of his plea bargain, Menendez-Gonzalez filed a motion to
reopen. As relevant here, the BIA concluded that he had not
demonstrated that the vacatur of his conviction was an
“exceptional circumstance” warranting sua sponte reopening.
The panel explained that denials of motions to reopen sua
sponte generally are not reviewable because the decisions are
committed to agency discretion, but that the court recognized
one narrow exception in Bonilla v. Lynch, 840 F.3d 575 (9th
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
MENENDEZ-GONZALEZ V. BARR 3
Cir. 2016), which held that the court has jurisdiction to
review BIA decisions denying sua sponte reopening for the
limited purpose of reviewing the reasoning behind the
decisions for legal or constitutional error.
Menendez-Gonzalez argued that this court had
jurisdiction under Bonilla and should grant his petition
because the BIA irrationally departed from a settled practice
of granting sua sponte reopening when the conviction
underlying a removal order is vacated. The panel rejected
that contention, concluding that Menendez-Gonzalez had not
demonstrated a pattern that was well established or clearly
defined. Noting that Menendez-Gonzalez cited to ten
unpublished BIA decisions over a period of about eight years
during which the BIA completed more than 30,000 cases each
year, the panel explained that citation of a few unpublished
decisions fell far short of establishing that the BIA has
effectively adopted a rule that vacatur of an underlying
conviction necessarily requires it to grant reopening sua
sponte.
The panel also rejected Menendez-Gonzalez’s contention
that the BIA violated the regulation that precludes it from
engaging in factfinding when deciding appeals. The panel
observed that the only “factfinding” Menendez-Gonzalez
challenged was whether he remained convicted and whether
his positive equities constituted “exceptional circumstances”
warranting reopening. However, the panel explained that the
legal significance of his conviction and its subsequent vacatur
presented a legal question that the BIA permissibly decided,
and that determining whether he presented “exceptional
circumstances” called for exercise of the agency’s discretion,
not factfinding.
4 MENENDEZ-GONZALEZ V. BARR
Accordingly, the panel concluded that Menendez-
Gonzalez’s petition did not fit within the narrow exception
that allows for judicial review where the BIA’s decision was
based on legal or constitutional error.
COUNSEL
Stacy Tolchin (argued), Law Offices of Stacy Tolchin, Los
Angeles, California, for Petitioner.
Andrew B. Insenga (argued), Trial Attorney; Douglas E.
Ginsburg, Assistant Director; Office of Immigration
Litigation, Civil Division, United States Department of
Justice, Washington, D.C.; for Respondent.
OPINION
CLIFTON, Circuit Judge:
This court generally lacks jurisdiction to review a
decision by the Board of Immigration Appeals (“BIA”) not to
exercise its sua sponte authority to reopen removal
proceedings. Ekimian v. I.N.S., 303 F.3d 1153, 1154 (9th Cir.
2002). In Bonilla v. Lynch, however, we concluded that this
court has jurisdiction to review denial of a motion to reopen
sua sponte only “for the limited purpose of reviewing the
reasoning behind the decisions for legal or constitutional
error.” 840 F.3d 575, 588 (9th Cir. 2016).
Fernando Menendez-Gonzalez petitions for review of a
BIA decision denying sua sponte reopening based on the
vacatur of the criminal conviction underlying his removal
MENENDEZ-GONZALEZ V. BARR 5
order. This case thus presents the question of whether
Menendez-Gonzalez has established legal or constitutional
error in the BIA’s reasoning such that we have jurisdiction to
review that decision. See id. We conclude that Menendez-
Gonzalez has not established such error and therefore deny
his petition.
I. Background
Fernando Menendez-Gonzalez is a native and citizen of
Peru who entered the United States in 1985 without being
legally admitted. In 1990, he was convicted in state court of
cocaine possession in violation of California Health & Safety
Code § 11351. He was subsequently charged as deportable
for entering without inspection and for controlled substance
and aggravated felony convictions based on his drug offense.
An immigration judge (“IJ”) found him deportable, and he
waived appeal. He was deported in 1994, but he re-entered
the United States illegally in the same year.
In 2009, Menendez-Gonzalez’s 1990 conviction was
vacated because there was no preliminary hearing transcript
to assess whether he was properly advised of the
consequences of his plea bargain, in violation of California
Penal Code § 1016.5. He then submitted to the immigration
court a motion to reopen based on the vacatur of his
conviction which, he contended, made him eligible for
adjustment of status and suspension of deportation.
The IJ denied the motion, concluding that she lacked
jurisdiction to reopen under the “departure bar” for removed
aliens. At the time, BIA precedent held that 8 C.F.R.
§ 1002.23(b)(1) precluded a previously-removed alien from
invoking the jurisdiction of the immigration court to consider
6 MENENDEZ-GONZALEZ V. BARR
a motion to reopen, even sua sponte. See generally Matter of
Armendarez-Mendez, 24 I. & N. Dec. 646 (BIA 2008).
Menendez-Gonzalez timely appealed to the BIA, which
dismissed his appeal. He then filed a petition for review in
this court. This court granted the government’s unopposed
motion to remand to the BIA in light of a subsequent Ninth
Circuit decision on the departure bar. In that case, Reyes-
Torres v. Holder, 645 F.3d 1073, 1075–77 (9th Cir. 2011), we
held that an alien who filed a motion to reopen after being
deported from the United States was not precluded by the
departure bar from pursuing the motion.
On remand, the BIA again denied the motion to reopen,
agreeing with the IJ’s alternate conclusion that the motion
was time-barred. A motion to reopen must be filed within 90
days of a final order of removal, or on or before September
30, 1996, whichever comes later. 8 C.F.R § 1003.23(b)(1).
The BIA declined to exercise its authority—discussed at
greater length below—to reopen the proceeding sua sponte,
because Menendez-Gonzalez had not demonstrated that the
vacatur of his conviction was an “exceptional circumstance”
warranting sua sponte reopening.
Menendez-Gonzalez again petitioned for review. This
court granted the petition and remanded to the BIA. In doing
so, we explicitly noted that we lacked jurisdiction to review
the BIA’s exercise of its discretionary authority to grant or
deny sua sponte reopening, describing that discretion as
“unfettered.” The remand was necessary, however, because
we could not determine whether the BIA’s decision was
based on such an exercise of discretionary authority or,
alternatively, on the application of a different standard used
to evaluate the merit of a collateral attack on the underlying
prior removal order. We thus asked the BIA to clarify the
MENENDEZ-GONZALEZ V. BARR 7
legal standard under which it denied sua sponte reopening.
Menendez-Gonzalez v. Holder, 597 F. App’x 435 (9th Cir.
2015).
The BIA again denied the motion to reopen, restating its
earlier conclusion and specifying that it applied the
“exceptional circumstances” standard applicable to sua
sponte reopening. Menendez-Gonzalez then filed this petition
for review.
II. Discussion
“The Board may at any time reopen or reconsider on its
own motion any case in which it has rendered a decision.”
8 C.F.R. § 1003.2(a). Similarly,“[a]n Immigration Judge may
upon his or her own motion at any time, or upon motion of
the Service or the alien, reopen or reconsider any case.”
8 C.F.R. § 1003.23(b)(1).
The election to reopen or reconsider on its own motion is
commonly called the exercise of “sua sponte” authority. See
Ekimian, 303 F.3d at 1155. In practice, the agency’s decision
to exercise its sua sponte authority is often not actually
initiated by the agency on its own but is instead prompted, as
here, by a party filing a motion to reopen sua sponte. See
Bonilla, 840 F.3d at 585 (“Since the enactment of IIRIRA,
where the timing and numerosity statutory requirements are
not met and equitable tolling is unavailable, the only way an
alien can reopen an adverse final order of removal is to ask
the Board to exercise its sua sponte authority . . . .”).
Nonetheless, as we noted at the outset of this opinion, denials
of motions to reopen sua sponte generally are not reviewable
because the decisions are committed to agency discretion.
Ekimian, 303 F.3d at 1159.
8 MENENDEZ-GONZALEZ V. BARR
We have recognized one narrow exception. We have
jurisdiction “to review Board decisions denying sua sponte
reopening for the limited purpose of reviewing the reasoning
behind the decisions for legal or constitutional error.”
Bonilla, 840 F.3d at 588. In recognizing our jurisdiction in
Bonilla, we expressed concern that the BIA’s denial in that
case may have been based on a mistaken legal premise, that
the petitioner1 had already lost his permanent resident status
and would not regain it to become eligible for certain relief,
even if reopening were granted. Id. at 589. As a legal
proposition, we held that granting the motion to reopen would
vacate the final deportation order that caused the petitioner to
lose his permanent residence status, such that the reopening
would not be futile. Id. at 589–90.
We reaffirmed in Bonilla that if the BIA had exercised its
authority “without relying on a constitutionally or legally
erroneous premise, its decision will not be reviewable.” Id. at
592. Because we were “persuaded that the Board based its
decision on the legal error we ha[d] identified,” we remanded
to permit the BIA to “revisit its sua sponte reopening decision
on a proper understanding of its authority to grant Bonilla
relief if reopening is granted.” Id. at 591, 592. We held that
“[i]f, on remand, the Board again declines to exercise its sua
sponte authority to reopen, and does so without relying on a
constitutionally or legally erroneous premise, its decision will
not be reviewable.” Id at 592.
1
We use the term “petitioner” to refer to the party so described in this
court, the person seeking relief from an order of removal. In proceedings
before the BIA and the immigration court, that person is denominated the
“respondent.” The potential for confusion is evident, so we make clear
how we are using the term.
MENENDEZ-GONZALEZ V. BARR 9
Menendez-Gonzalez raises two legal claims in arguing
that this court has jurisdiction under Bonilla and should grant
his petition: (1) that the BIA irrationally departed from its
settled practice of granting sua sponte reopening when the
conviction underlying a removal order is vacated, and (2) that
the BIA violated its regulations when it failed to remand the
case to the IJ. We are not persuaded by either argument.
A. Inconsistency with a Settled Course of Adjudication
This court generally lacks jurisdiction to review decisions
denying sua sponte reopening because of “the absence of a
judicially manageable standard for us to evaluate the BIA’s
exercise of discretion.” Singh v. Holder, 771 F.3d 647, 650
(9th Cir. 2014). Even when we recognized in Bonilla our
limited jurisdiction to review BIA decisions denying sua
sponte reopening, we affirmed our prior holding that the
“‘exceptional situation’ benchmark does not provide a
sufficiently meaningful standard to permit judicial review.”
Bonilla, 840 F.3d at 586. Menendez-Gonzalez contends that
the BIA has a settled practice of finding that the vacatur of
a criminal conviction is an exceptional circumstance
warranting sua sponte reopening, and that it irrationally
departed from this settled practice in his case.
Menendez-Gonzalez argues that this court should follow
a decision by the Third Circuit and hold that orders denying
sua sponte reopening are subject to judicial review when the
BIA departs from its settled practice. The Third Circuit has
recognized such a “settled course” exception allowing it to
review orders denying sua sponte reopening when petitioners
“establish that the BIA has limited its discretion via a policy,
rule, settled course of adjudication, or by some other method,
such that the BIA’s discretion can be meaningfully reviewed
10 MENENDEZ-GONZALEZ V. BARR
for abuse.” Sang Goo Park v. Attorney Gen., 846 F.3d 645,
653 (3d Cir. 2017).
Menendez-Gonzalez cites to another Third Circuit case
remanding to the BIA to clarify its basis for denying a motion
for sua sponte reopening based on a vacated conviction, Cruz
v. Attorney Gen., 452 F.3d 240, 250 (3d Cir. 2006). In that
case, the BIA concluded that sua sponte reopening was not
“warranted for any reason” but did not refer to vacatur of the
conviction that was the sole basis of inadmissibility, and the
Third Circuit remanded for the BIA to clarify whether it
arrived at its conclusion based on an exercise of its unfettered
discretion, such that its decision would not be subject to
review. Id. at 242, 250. Menendez-Gonzalez also cites the
Supreme Court’s statement in I.N.S. v. Yueh-Shaio Yang,
519 U.S. 26, 32 (1996), that if the BIA “announces and
follows—by rule or by settled course of adjudication—a
general policy by which its exercise of discretion will be
governed, an irrational departure from that policy” could
constitute arbitrary or capricious action subject to reversal.
It may be that the BIA’s departure from an established
policy, set “by rule or by settled course of adjudication,” id.,
could amount to a legal or constitutional error, but the
existence of a “settled course” cannot be lightly inferred. The
question is whether the agency has acted to constrain its
otherwise unfettered discretion.
Even under the Third Circuit’s cases, the petitioner must
establish that the pattern of dispositions is “clearly defined”
so the BIA’s discretion can be “meaningfully reviewed.”
Park, 846 F.3d at 653. It is insufficient if the petitioner
identifies a “‘pattern’ of dispositions whose contours are not
clearly defined or which is not tailored to the petitioner’s
MENENDEZ-GONZALEZ V. BARR 11
circumstances.” Id. Menendez-Gonzalez has not
demonstrated a pattern that is well established or clearly
defined.
Menendez-Gonzalez cites to ten unpublished BIA
decisions over a period of about eight years, a period of time
when the BIA completed more than 30,000 cases each year.
Executive Office for Immigration Review, FY 2013 Statistics
Yearbook S1 (2014); Executive Office for Immigration
Review, FY 2016 Statistics Yearbook Q2 (2017). He argues
that those citations demonstrate a “pattern” of BIA orders
granting sua sponte reopening following vacatur of a
conviction, and that this pattern established a sufficiently
“settled course” that constrained the BIA’s discretion and
obligated it to exercise its sua sponte authority to reopen his
case.
We do not agree. Among the thousands of decisions made
by the BIA over many years, it is not at all remarkable or
persuasive to be able to find a few that seem to have elements
in common with a current litigant’s case. That is especially
true with unpublished dispositions, as they generally include
only brief descriptions, if any, of facts that may influence the
exercise of discretion.2 Citation of a few unpublished
decisions falls far short of establishing that the BIA has
effectively adopted a rule that vacatur of an underlying
conviction necessarily requires it to grant reopening sua
sponte, effectively eliminating the discretion that the BIA
2
Among the cases Menendez-Gonzalez cites, many have factual
features that potentially distinguish them from his appeal. For example, in
all but two of the cases he cites where the BIA decided to reopen sua
sponte, the Government either did not oppose or did not respond to the
noncitizen’s motion to reopen.
12 MENENDEZ-GONZALEZ V. BARR
would otherwise have to examine the specifics of an
individual petitioner’s case.
Moreover, we note that in declining to exercise its
discretion in favor of Menendez-Gonzalez’s motion, the BIA
stated that vacatur of his 1990 conviction “solely on the basis
of proceedings commenced nearly 15 years after the
execution of his lawful deportation order” did not constitute
an “exceptional circumstance” justifying sua sponte
reopening. There have been other decisions over the years in
which the BIA declined to exercise its sua sponte authority to
reopen after determining that vacatur of the underlying
conviction did not constitute an “exceptional circumstance”
sufficient to warrant such an extraordinary remedy. See In Re
Tunbosun Olawale William, 2008 WL 5537807, at *3–4 (BIA
Dec. 23, 2008) (unpublished); In Re: Hugo Vara-Martinez,
2012 WL 3276566 (BIA July 13, 2012) (unpublished). Even
if we concluded that there was a sufficiently established
pattern of granting sua sponte reopening where the
underlying conviction had been vacated—and we have
not—Menendez-Gonzalez has not established any “incorrect
legal premise” in the BIA’s decision not to reopen sua sponte
where the petitioner waited years before moving to reopen.
See Bonilla, 840 F.3d at 588.
The citation by Menendez-Gonzalez to a relative handful
of unpublished BIA decisions arriving at different
conclusions does not establish a “settled pattern of
adjudication” or provide us with any meaningful standard to
apply to limit the agency’s exercise of discretion. We only
have jurisdiction “for the limited purpose of identifying legal
or constitutional error,” id. at 586, and no such error is
apparent in the record before us.
MENENDEZ-GONZALEZ V. BARR 13
B. BIA Regulations
Under 8 C.F.R. § 1003.1(d)(3)(iv), “the Board will not
engage in factfinding in the course of deciding appeals.”
Menendez-Gonzalez argues the BIA violated this provision
by making factual findings instead of remanding his case to
the IJ for factfinding. “Where the IJ has not made a finding of
fact on a disputed matter, and such a finding is necessary to
resolution of the case, the BIA must remand to the IJ to make
the required finding; it may not conduct its own fact-finding.”
Rodriguez v. Holder, 683 F.3d 1164, 1170 (9th Cir. 2012).
Although Menendez-Gonzalez argues that the BIA
violated this rule, he has not identified the finding of any
disputed facts that mattered for the BIA’s decision. The only
“factfinding” he challenges is whether he remained convicted
and whether his positive equities constituted “exceptional
circumstances” warranting reopening. It is not disputed that
Menendez-Gonzalez was convicted in 1990 and the
conviction was set aside under state law in 2009 because he
might not have been properly advised of the consequences of
his plea bargain. The legal significance of those events
presented a legal question that the BIA permissibly decided.
Determining whether he presented “exceptional
circumstances” called for exercise of the agency’s discretion,
not factfinding.
The relevant regulations also provide that “[a] party
asserting that the Board cannot properly resolve an appeal
without further factfinding must file a motion for remand.”
8 C.F.R. § 1003.1(d)(3)(iv). Menendez-Gonzalez did not file
such a motion and did not ask the BIA to remand. Instead he
simply argued that sua sponte reopening was warranted and
that “[t]he Board should therefore order that Respondent’s
14 MENENDEZ-GONZALEZ V. BARR
case be reopened so that he may proceed with his
applications.” He apparently did not see the need for
additional factfinding then. We do not see it now. See Perez-
Palafox v. Holder, 744 F.3d 1138, 1145 (9th Cir. 2014)
(“Although Perez-Palafox accuses the BIA of engaging in
improper factfinding, he does not point to any fact found by
the IJ that was ignored by the BIA, or any fact found by the
BIA that was not found by the IJ.”).
Nor was it necessary for the BIA to remand the matter to
the IJ in order to let the IJ offer her view on the exercise of
discretion. Under 8 C.F.R. § 1003.1(d)(3)(ii), “[t]he Board
may review questions of law, discretion, and judgment and all
other issues in appeals from decisions of immigration judges
de novo.” Menendez-Gonzalez argues the BIA erred in
making a discretionary decision in the first instance because
the regulations only permit de novo “review” of the IJ’s
exercise of discretion. The word “review” does not prohibit
the BIA from exercising its own discretion in the first
instance. See, e.g., Wood v. Mukasey, 516 F.3d 564, 569
(7th Cir. 2008) (“Provided the BIA can do so without
additional fact-finding, 8 C.F.R. § 1003.1(d)(3)(iv), we see
no reason why it must avoid issues of discretion in an appeal
because they were never reached by the IJ.”). The BIA did
not violate section 1003.1(d)(3)(ii) by declining to exercise
its discretionary sua sponte authority without remanding to
the IJ.
III. Conclusion
The petition for review is denied. We generally lack
jurisdiction to review a decision by the BIA not to exercise its
sua sponte authority to reopen proceedings. This petition does
MENENDEZ-GONZALEZ V. BARR 15
not fit within the narrow exception where the BIA’s decision
was based on legal or constitutional error.
PETITION FOR REVIEW DENIED.