Jose Valdes Moreno v. William Barr

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS NOV 20 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOSE ENRIQUE VALDES MORENO, No. 18-70613
Petitioner, Agency No. A097-348-468
v.
MEMORANDUM*
WILLIAM P. BARR, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted November 18, 2020**
Pasadena, California
Before: FERNANDEZ, PAEZ, and OWENS, Circuit Judges.
Jose Enrique Valdes Moreno, a native and citizen of Mexico, petitions for
review of the Board of Immigration Appeals’ (“BIA” or “Board”) denial of his
motion to reopen. Valdes Moreno’s motion was untimely, but he asked that the
BIA exercise its discretion to reopen his removal order sua sponte. As the parties
*
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).
are familiar with the facts, we do not recount them here. We dismiss the petition
for lack of jurisdiction.
Where, as here, a motion to reopen is untimely and tolling is unavailable, the
only way a noncitizen “can reopen an adverse final order of removal is to ask the
Board to exercise its sua sponte authority—that is, to reopen the case ‘on its own
motion.’” Bonilla v. Lynch, 840 F.3d 575, 585 (9th Cir. 2016) (quoting 8 C.F.R.
§ 1003.2(a)). To exercise its sua sponte reopening power, the Board “must be
persuaded that the . . . situation is truly exceptional.” Id. (citation omitted).
This court generally lacks jurisdiction to review the Board’s denial of sua
sponte reopening because the “exceptional situation” benchmark does not provide
a sufficiently meaningful standard to permit judicial review. Id. at 581, 585-86
(citing Ekimian v. INS, 303 F.3d 1153, 1159 (9th Cir. 2002)). However, “this court
has 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.” Id. at 588. “If, upon exercise of its jurisdiction, this court
concludes that the Board relied on an incorrect legal premise, it should remand to
the BIA so it may exercise its authority against the correct legal background.” Id.
(citation and internal quotation marks omitted).
Here, the BIA’s denial of Valdes Moreno’s motion to reopen simply stated
that he had not “shown that an ‘exceptional situation’ exists that would warrant the
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Board’s exercise of its discretion to reopen these proceedings sua sponte. Matter
of J-J-, 21 I&N Dec. 976 (BIA 1997); Matter of G-D-, 22 I&N Dec. 1132 (BIA
1999).”
Valdes Moreno argues that it is unclear whether the BIA’s decision was
based on an incorrect legal premise, which would be reviewable by this court
under Bonilla, and therefore this court should remand for the BIA to clarify its
decision. However, it is clear that the BIA’s decision rested solely on its
discretionary determination that Valdes Moreno failed to show an exceptional
situation. Nothing in the BIA’s decision suggests that it was based on a legal or
constitutional error. See Lona v. Barr, 958 F.3d 1225, 1234 (9th Cir. 2020)
(“[O]ur review under Bonilla is constricted to legal or constitutional error that is
apparent on the face of the BIA’s decision and does not extend to speculating
whether the BIA might have misunderstood some aspect of its discretion.”).
Thus, we lack jurisdiction to review the BIA’s decision to deny sua sponte
reopening.
PETITION DISMISSED.
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