Eladio Monroy-Martinez v. Matthew Whitaker ( 2019 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JAN 18 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ELADIO MONROY-MARTINEZ, AKA No. 15-73094
Jauneduardo M. Castellanos, AKA Eladio
Martinez Monroy, AKA Eladio Monroy, Agency No. A077-093-039
AKA Eladio Monroy Martinez, AKA Jose
Angel Monroy-Martinez, AKA Carlos
Olvera-Islas, AKA Arturo Ortega Olivera, MEMORANDUM*
Petitioner,
v.
MATTHEW G. WHITAKER, Acting
Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted January 14, 2019**
San Francisco, California
Before: WALLACE, CLIFTON, and FRIEDLAND, Circuit Judges.
Eladio Monroy-Martinez, a native and citizen of Mexico, petitions for
*
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).
review of the Board of Immigration Appeals’ (Board) order dismissing his appeal
from an immigration judge’s (IJ) denial of his motion to reopen. We review
denials of reopening for abuse of discretion and will reverse if the denial is
arbitrary, irrational, or contrary to law. Najmabadi v. Holder, 597 F.3d 983, 986
(9th Cir. 2010). We have jurisdiction under 8 U.S.C. § 1252. The Board did not
abuse its discretion, so we deny the petition.
On December 21, 1998, an IJ ordered Monroy-Martinez’s removal to
Mexico. He subsequently reentered the United States, and on April 11, 2014, the
Department of Homeland Security reinstated his prior removal order. Since it has
been reinstated, the prior removal order “is not subject to being reopened or
reviewed,” and Monroy-Martinez “is not eligible and may not apply for any relief”
under the immigration laws. Bartolome v. Sessions, 904 F.3d 803, 808 (9th Cir.
2018) (quoting 8 U.S.C. § 1231(a)(5)). But see id. (describing exception for
withholding of removal or relief under CAT).1 Accordingly, the Board did not
have the statutory authority to reopen Monroy-Martinez’s removal order.
We recognize that the Board did not base its denial of reopening on this
ground. Our review is typically limited to “[t]he grounds upon which . . . the
1
To the extent Monroy-Martinez sought withholding of removal or relief under
CAT, he has not challenged the agency’s denial of those forms of relief—he
challenges only the agency’s denial of his motion to reopen, which would have
allowed him to additionally pursue asylum relief.
2
record discloses that [the agency’s] action was based.” Hernandez-Cruz v. Holder,
651 F.3d 1094, 1109 (9th Cir. 2011) (alterations in original) (quoting SEC v.
Chenery Corp., 318 U.S. 80, 87 (1943)). However, this doctrine has no application
where the agency, as here, was required to deny reopening under the applicable
law. See Morgan Stanley Capital Grp. Inc. v. Pub. Util. Dist. No. 1 of Snohomish
Cty., Wash., 554 U.S. 527, 544–45 (2008). “That it provided a different rationale
for the necessary result is no cause for upsetting its ruling” because to remand
“would be an idle and useless formality” and would otherwise “convert judicial
review of agency action into a ping-pong game.” Id. at 545 (quoting NLRB v.
Wyman–Gordon Co., 394 U.S. 759, 766–67, n.6 (1969)).
To the extent Monroy-Martinez challenges the decision not to reopen
proceedings sua sponte, we lack jurisdiction to review it absent a claim of legal or
constitutional error. See Bonilla v. Lynch, 840 F.3d 575, 588 (9th Cir. 2016).
PETITION DENIED.
3