Tapia Ortiz v. Bondi

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS FEB 20 2025 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT RENE TAPIA ORTIZ, No. 23-568 Agency No. Petitioner, A205-718-446 v. MEMORANDUM* PAMELA BONDI, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted February 14, 2025** Pasadena, California Before: PAEZ and R. NELSON, Circuit Judges, and LASNIK, District Judge.*** Petitioner Rene Tapia Ortiz petitions for review of a Board of Immigration Appeals (BIA) decision denying his “Motion to Reconsider and Reopen Removal Proceedings Sua Sponte and Stay of Removal.” The BIA’s refusal to exercise its sua * 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). *** The Honorable Robert S. Lasnik, United States District Judge for the Western District of Washington, sitting by designation. sponte authority is unreviewable in this circumstance, and we therefore dismiss the petition for lack of jurisdiction.1 We may only review the BIA’s refusal to reopen sua sponte “to the limited degree that the refusal was based on legal error.” Bonilla v. Lynch, 840 F.3d 575, 579 (9th Cir. 2016). The legal error must be “apparent on the face of the BIA’s decision,” and it must have led to the BIA’s erroneous belief that (1) it was not allowed to use its discretion to act sua sponte in the matter or (2) “exercising its discretion would be futile.” Lona v. Barr, 958 F.3d 1225, 1234 (9th Cir. 2020). While petitioner alleges legal error “[i]n the underlying proceedings,” he does not point to any legal error apparent on the face of the BIA’s decision not to reopen sua sponte. Therefore, petitioner has not placed his case within the “constricted” parameters that give us jurisdiction to review the BIA’s refusal to exercise its sua sponte authority. Id. Because we lack jurisdiction in this matter, the temporary stay of removal is lifted upon issuance of the mandate. Petitioner’s motion for a stay of removal is otherwise denied. PETITION DISMISSED. 1 Although the BIA addressed statutory reopening and reconsideration in its decision, Tapia Ortiz’s petition for review only challenges the BIA’s refusal to exercise its sua sponte authority. Therefore, we do not address statutory reopening or reconsideration. See Nguyen v. Barr, 983 F.3d 1099, 1102 (9th Cir. 2020). 2 23-568