Shagdar Boldmyagmar v. William Barr ( 2020 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 14 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
SHAGDAR BOLDMYAGMAR; et al., No. 18-72534
Petitioners, Agency Nos. A097-583-345
A097-583-346
v. A097-583-347
A097-583-348
WILLIAM P. BARR, Attorney General,
Respondent. MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted December 10, 2020**
San Francisco, California
Before: TALLMAN, MURGUIA, and CHRISTEN, Circuit Judges.
Lead petitioner Shagdar Boldmyagmar, a native and citizen of Mongolia,
along with his wife and two sons, petitions for review of the Board of Immigration
Appeals’ (BIA) decision denying his third motion to reopen his removal
*
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).
proceedings.1 We have jurisdiction under 8 U.S.C. § 1252. Reviewing for abuse
of discretion the denial of a motion to reopen, Go v. Holder, 744 F.3d 604, 609
(9th Cir. 2014), we deny the petition for review.
1. An alien may file one motion to reopen within ninety days of a final
administrative order of removal. 8 U.S.C. § 1229a(c)(7); 8 C.F.R. § 1003.2(c)(2);
see also Go, 744 F.3d at 607. Boldmyagmar’s third motion to reopen, filed on
March 1, 2018—ten years after the BIA issued its final order of removal in his
case—is admittedly time- and number-barred. Boldmyagmar argues that he should
receive the benefit of the exception for motions to reopen “based on changed
circumstances arising in the country of nationality or in the country to which
deportation has been ordered, if such evidence is material and was not available
and could not have been discovered or presented at the previous hearing.” 8
C.F.R. § 1003.2(c)(3)(ii). According to Boldmyagmar, his receipt in 2016 of a
settlement approved by the California Workers’ Compensation Appeals Board
awarding him a permanent disability rating of 18% and “lifetime care for his
[2006] shoulder injury should a doctor find that there is a need for medical
treatment that is due to his work-related injury,” constitutes a changed
circumstance. Boldmyagmar relies on our decision in Vahora v. Holder, 641 F.3d
1We refer only to lead petitioner Boldmyagmar in this disposition as his asylum
application applies to his wife and children as derivative beneficiaries. 8 U.S.C.
§ 1158(b)(3)(A); 8 C.F.R. § 1208.3(a).
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1038 (9th Cir. 2011); Vahora, however, granted relief based on changed
circumstances in the petitioner’s “home country,” id. at 1045, and therefore
provides no support for Boldmyagmar’s position. The BIA did not abuse its
discretion in concluding that Boldmyagmar has not demonstrated that his motion to
reopen falls within any exception to the time or number requirements.
2. Boldmyagmar also argues that the BIA should have exercised its sua
sponte power to reopen under 8 C.F.R. § 1003.2(a), and—reading his brief
generously—that he warrants a discretionary grant of humanitarian asylum because
the loss of his worker’s compensation settlement benefits upon removal constitutes
a “reasonable possibility that he . . . may suffer other serious harm” under 8 C.F.R.
§ 1208.13(b)(1)(iii)(B). We are generally without jurisdiction to review the BIA’s
discretionary determination not to exercise its sua sponte authority to reopen. See
Bonilla v. Lynch, 840 F.3d 575, 588 (9th Cir. 2016) (we may examine BIA
decisions denying sua sponte reopening for “the limited purpose of reviewing the
reasoning behind the decisions for legal or constitutional error”). To the extent
that its refusal to sua sponte reopen the application was based on its conclusion
that Boldmyagmar had failed to identify a form of relief from removal for which
he was eligible, the BIA did not abuse its discretion. To be eligible for
humanitarian asylum “an applicant must still establish past persecution on account
of a protected ground.” Belishta v. Ashcroft, 378 F.3d 1078, 1080 (9th Cir. 2004).
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Boldmyagmar’s claims of past persecution on account of his political opinion were
found not to be credible. See Boldmyagmar v. Holder, 516 F. App’x 675, 676 (9th
Cir. 2013). Accordingly, he is not eligible for a discretionary grant of
humanitarian asylum—the only form of relief he advanced in his third motion to
reopen.
3. Boldmyagmar next claims, without any argument, analysis, or citations to
authority which would enable us to grant him relief, that his removal would lead to
an unconstitutional taking of his “later acquired equity and property interest in
receiving the medical benefits embodied in the decision of the State of California
Workers’ Compensation Appeals Board decision.” Even if Boldmyagmar had
raised this issue in sufficient detail to warrant consideration, see Indep. Towers of
Wash. v. Wash., 350 F.3d 925, 929 (9th Cir. 2003), we are dubious of the
proposition that we could set aside an otherwise valid final removal order from
2013 as a remedy for an allegedly unconstitutional taking of a property interest that
came about three years after we affirmed that removal order.
4. Finally, Boldmyagmar argues that the Department of Homeland Security
(DHS) has “an obligation to exercise its discretion in a manner that recognizes and
respects the decision of the California Workers[’] Compensation Appeals Board,”
and that DHS abused that discretion when it declined to exercise its prosecutorial
discretion not to remove Boldmyagmar or to grant his Application for a Stay of
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Deportation or Removal under 8 C.F.R. § 241.6. We are barred by 8 U.S.C.
§ 1252(g) from reviewing discretionary, quasi-prosecutorial decisions by DHS to
adjudicate cases or refer them for prosecution. See, e.g., Barahona-Gomez v.
Reno, 236 F.3d 1115, 1120–21 (9th Cir. 2001). We have not yet had occasion to
decide whether § 1252(g) bars review of a decision to deny an administrative stay
of removal under 8 C.F.R. § 241.6, but we will not answer that question today.2
Boldmyagmar’s briefing on this issue comprises less than one page, cites no
authority, and consists entirely of “bold assertion[s]” with “little if any analysis to
assist [us] in evaluating [the] legal challenge.” Indep. Towers of Wash., 350 F.3d
at 929. “We require contentions to be accompanied by reasons,” id. at 930, and
here Boldmyagmar has failed to provide any reasons.
PETITION FOR REVIEW DENIED.
2
Two of our sister circuits concluded that such a discretionary denial is part of a
decision to execute a removal order, and thus barred from review under § 1252(g).
See Moussa v. Jenifer, 389 F.3d 550, 554 (6th Cir. 2004) (concluding “that by
challenging the decision to deny a request for a stay, [petitioner] is seeking to
enjoin the Attorney General from executing a valid order of deportation” and that
the “district director’s decision is therefore protected from subsequent judicial
review under § 1252(g)”); Sharif ex. rel. Sharif v. Ashcroft, 280 F.3d 786, 787 (7th
Cir. 2002) (holding that judicial review is barred because “[a] request for a stay of
removal ‘arises from’ the Attorney General’s decision . . . to execute a removal
order” (quoting § 1252(g)). We leave for another day the resolution of this open
question.
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