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Menendez-Gonzalez v. Barr

United States Court of Appeals, Ninth Circuit

July 11, 2019

Fernando Menendez-Gonzalez, AKA Fernando Menedez, Petitioner,
v.
William P. Barr, Attorney General, Respondent.

          Argued and Submitted January 14, 2019 San Francisco, California

          On Petition for Review of an Order of the Board of Immigration Appeals Agency No. A072-062-253

          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.

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

         SUMMARY[*]

         Immigration

         Denying Fernando Menendez-Gonzalez's petition for review of a decision of the Board of Immigration Appeals denying sua sponte reopening, the panel explained that it had jurisdiction for the limited purpose of identifying legal or constitutional error, but concluded that Menendez-Gonzalez had established no such error through his claims that (1) the BIA irrationally departed from a settled practice of granting sua sponte reopening when the conviction underlying a removal order is vacated, and (2) the BIA violated its regulations when it failed to remand the case to the immigration judge for factfinding.

         Based on a conviction for cocaine possession, Menendez-Gonzalez was deported in 1994, but later re-entered the United States illegally. After his conviction was vacated in 2009 because there was no preliminary hearing transcript to assess whether he was properly advised of the consequences of his plea bargain, Menendez-Gonzalez filed a motion to reopen. As relevant here, the BIA concluded that he had not demonstrated that the vacatur of his conviction was an "exceptional circumstance" warranting sua sponte reopening.

         The panel explained that denials of motions to reopen sua sponte generally are not reviewable because the decisions are committed to agency discretion, but that the court recognized one narrow exception in Bonilla v. Lynch, 840 F.3d 575 (9th Cir. 2016), which held that the court has jurisdiction to review BIA decisions denying sua sponte reopening for the limited purpose of reviewing the reasoning behind the decisions for legal or constitutional error.

         Menendez-Gonzalez argued that this court had jurisdiction under Bonilla and should grant his petition because the BIA irrationally departed from a settled practice of granting sua sponte reopening when the conviction underlying a removal order is vacated. The panel rejected that contention, concluding that Menendez-Gonzalez had not demonstrated a pattern that was well established or clearly defined. Noting that Menendez-Gonzalez cited to ten unpublished BIA decisions over a period of about eight years during which the BIA completed more than 30, 000 cases each year, the panel explained that citation of a few unpublished decisions fell far short of establishing that the BIA has effectively adopted a rule that vacatur of an underlying conviction necessarily requires it to grant reopening sua sponte.

         The panel also rejected Menendez-Gonzalez's contention that the BIA violated the regulation that precludes it from engaging in factfinding when deciding appeals. The panel observed that the only "factfinding" Menendez-Gonzalez challenged was whether he remained convicted and whether his positive equities constituted "exceptional circumstances" warranting reopening. However, the panel explained that the legal significance of his conviction and its subsequent vacatur presented a legal question that the BIA permissibly decided, and that determining whether he presented "exceptional circumstances" called for exercise of the agency's discretion, not factfinding.

         Accordingly, the panel concluded that Menendez-Gonzalez's petition did not fit within the narrow exception that allows for judicial review where the BIA's decision was based on legal or constitutional error.

          OPINION

          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 ...


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