Menendez-Gonzalez v. Barr

• Decision Date: 11 July 2019
• Docket Number: No. 15-73869,15-73869
• Citation: 929 F.3d 1113
• Parties: Fernando MENENDEZ-GONZALEZ, aka Fernando Menedez, Petitioner, v. William P. BARR, Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

929 F.3d 1113

Fernando MENENDEZ-GONZALEZ, aka Fernando Menedez, Petitioner,

v.William P. BARR, Attorney General, Respondent.

No. 15-73869

United States Court of Appeals, Ninth Circuit.

Argued and Submitted January 14, 2019 San Francisco, California

Filed July 11, 2019

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.

On Petition for Review of an Order of the Board of Immigration Appeals, Agency No. AXXX-XX2-253

Before: J. Clifford Wallace, Richard R. Clifton, and Michelle T. Friedland, Circuit Judges.

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 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 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 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.

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.

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 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 ...