Elizabeth Gonzalez-Marciel v. Merrick Garland ( 2022 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 14 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ELIZABETH GONZALEZ-MARCIEL, No. 21-70996
Petitioner, Agency No. A202-010-773
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted March 8, 2022**
Pasadena, California
Before: FRIEDLAND and KOH, Circuit Judges, and KORMAN,*** District
Judge.
*
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 Edward R. Korman, United States District Judge for
the Eastern District of New York, sitting by designation.
Jonathon Gonzalez-Marciel (“Gonzalez-Marciel”),1 a native and citizen of
Mexico, petitions for review of a decision of the Board of Immigration Appeals
(“BIA”) declining to reopen his case under the BIA’s sua sponte authority. We
“ordinarily lack jurisdiction to review a [BIA] decision denying sua sponte
reopening.” Bonilla v. Lynch, 840 F.3d 575, 585–86 (9th Cir. 2016). We have
jurisdiction to review decisions denying sua sponte reopening only “for the limited
purpose of reviewing the reasoning behind the decisions for legal or constitutional
error,” id. at 588, so long as there is “‘law to apply’ in doing so,” id. at 587.
In the instant case, Gonzalez-Marciel has not shown that there is any law to
apply to any legal or constitutional error in the BIA’s decision denying sua sponte
reopening. The BIA based its decision not upon a legal or constitutional error, but
upon an exercise of its own discretion. The BIA, in declining to reopen Gonzalez-
Marciel’s case, explained that the case was “not the type of case suitable for sua
sponte reopening.” The BIA also cited In re J-J-, 21 I. & N. Dec. 976, 984 (BIA
1997), and In re G-D-, 22 I. & N. Dec. 1132, 1134 (BIA 1999), which are two BIA
decisions establishing that the BIA should only sua sponte reopen a case in truly
exceptional situations. We have held that when the BIA bases its decision not to
sua sponte reopen a case on a finding that the case does not present a “truly
1
Petitioner is a transgender man who identifies himself as Jonathon, and employs
masculine pronouns when referring to himself. His preference is reflected in this
memorandum disposition.
2
exceptional” situation, we lack jurisdiction to review the BIA’s decision. Bonilla,
840 F.3d at 585–86.
Furthermore, Gonzalez-Marciel’s argument that the BIA’s failure to
examine his evidence constituted legal error is unsubstantiated in the record. See
Fernandez v. Gonzales, 439 F.3d 592, 603 (9th Cir. 2006) (describing presumption
that the BIA reads the entire record when deciding a motion to reopen and
explaining that the burden is on the petitioner to overcome that presumption).
Because we have jurisdiction to review decisions denying sua sponte
reopening only so long as there is “‘law to apply’ in doing so,” Bonilla, 840 F.3d at
587, and because there is no “law to apply” in this case, we lack jurisdiction to
review Gonzalez-Marciel’s petition for review.
PETITION DISMISSED.
3