Cerritos Duran v. Bondi

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS FEB 7 2025 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT JUAN CARLOS CERRITOS DURAN, No. 23-1525 Agency No. Petitioner, A076-352-619 v. MEMORANDUM* PAMELA BONDI, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted February 3, 2025** Pasadena, California Before: MILLER, LEE, and DESAI, Circuit Judges. Juan Carlos Cerritos Duran, a native and citizen of Mexico, petitions for review of a decision of the Board of Immigration Appeals denying his motion to reopen and terminate his removal proceedings. Cerritos Duran invokes our jurisdiction under 8 U.S.C. § 1252. We conclude that we lack jurisdiction, and we * 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). dismiss the petition. Cerritos Duran challenges only the Board’s decision not to reopen his proceedings sua sponte. Our jurisdiction to “review . . . the BIA’s unfettered discretion to reconsider or reopen on its own motion is limited to instances where the agency misconstrues the parameters of its sua sponte authority based on legal or constitutional error and, as a consequence, does not truly exercise its discretion.” Lona v. Barr, 958 F.3d 1225, 1237 (9th Cir. 2020); see Ekimian v. INS, 303 F.3d 1153, 1159 (9th Cir. 2002). Such error must be “apparent on the face of the BIA’s decision”; we will not “speculat[e] whether the BIA might have misunderstood some aspect of its discretion.” Lona, 958 F.3d at 1234. Here, there is no indication that the Board failed to appreciate its discretion. To the contrary, it considered and correctly rejected Cerritos Duran’s argument that the immigration court lacked jurisdiction over his removal proceedings under the intervening Supreme Court decisions in Pereira v. Sessions, 585 U.S. 198 (2018), and Niz-Chavez v. Garland, 593 U.S. 155 (2021). See United States v. Bastide-Hernandez, 39 F.4th 1187, 1191 (9th Cir. 2022) (en banc). It also considered Cerritos Duran’s “personal circumstances[,] including his periods of residence in the United States, his family and community ties, lack of criminal record, and other factors,” but it concluded that Cerritos Duran “did not show that this case presents an exceptional situation that would warrant the Board’s exercise 2 23-1525 of its discretion to reopen sua sponte.” Because the Board correctly understood its discretion, we lack jurisdiction to review its decision. PETITION DISMISSED. 3 23-1525