Ramirez Ramirez v. Garland

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 2 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT ANTONIO RAMIREZ RAMIREZ, No. 22-920 Agency No. Petitioner, A087-046-957 v. MEMORANDUM* MERRICK B. GARLAND, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted March 29, 2024** Pasadena, California Before: RAWLINSON, LEE, and BRESS, Circuit Judges. Antonio Ramirez Ramirez (Ramirez), a native and citizen of Mexico, petitions for review of a Board of Immigration Appeals (BIA) decision denying his motion to reconsider a previous BIA decision denying Ramirez’s untimely motion to reopen * 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). removal proceedings sua sponte. “[T]his 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.” Bonilla v. Lynch, 840 F.3d 575, 588 (9th Cir. 2016), as amended. If the BIA’s decision is free of legal or constitutional error, “this court will have no jurisdiction to review the sua sponte decision . . . .” Id. We dismiss Ramirez’s petition for lack of jurisdiction. The BIA denied Ramirez’s motion to reopen and subsequent motion to reconsider because Ramirez failed to show that his case qualified as an exceptional situation warranting sua sponte reopening under 8 C.F.R. § 1003.2(a). That decision is discretionary, see Lona v. Barr, 958 F.3d 1225, 1227 (9th Cir. 2020), and does not reflect any legal or constitutional error that we have jurisdiction to review. As we have explained, the scope of our ability to review a denial of a motion to sua sponte reopen immigration proceedings “is limited to those situations where it is obvious that the agency has denied sua sponte relief not as a matter of discretion, but because it erroneously believed that the law forbade it from exercising its discretion or that exercising its discretion would be futile.” Id. at 1234 (citations omitted). Neither of these circumstances is present here. While Ramirez argues that the BIA erred in concluding that the vacatur of his convictions did not qualify as an exceptional situation warranting sua sponte reopening, he identifies no colorable legal or constitutional error in the BIA’s decision. Ramirez’s further contention that 2 22-920 the BIA made factual errors concerning his lack of diligence is similarly unreviewable. The BIA’s consideration of Ramirez’s diligence does not suggest that the BIA “misconstrue[d] the parameters of its sua sponte authority based on legal or constitutional error,” such that its decision becomes reviewable. Id. at 1237. In short, the decision to deny Ramirez’s motions was an exercise of the BIA’s discretion and did not rely on an incorrect legal conclusion. See Cui v. Garland, 13 F.4th 991, 1001 (9th Cir. 2021) (“[I]n exercising its discretionary authority, the Court finds that the BIA did not ‘rel[y] on an incorrect legal premise’ in declining to sua sponte reopen [petitioner’s] case.” (quoting Bonilla, 840 F.3d at 588)). We lack jurisdiction to review the Board’s decision as a result. PETITION DISMISSED. 3 22-920