SOLANO v. GARLAND (2021)

United States Court of Appeals, Ninth Circuit.2021-05-13No. No. 17-73040

Summary · law.co

Holding. The petition was dismissed because the court lacked jurisdiction to review the BIA's denial of sua sponte reopening, and Solano failed to present his eligibility claim to the BIA for initial consideration.

German Jaimes Solano, a Mexican citizen, sought review of the Board of Immigration Appeals' decision to deny his motion to reopen his removal proceedings. Solano argued that a Supreme Court decision in Moncrieffe v. Holder represented a fundamental change in law warranting reopening, and that he was newly eligible for cancellation of removal under Pereira v. Sessions. However, the court found it lacked jurisdiction to review the BIA's discretionary decision not to reopen sua sponte, as the BIA has no obligation to reopen proceedings even when a fundamental change in law occurs. Additionally, Solano failed to raise his eligibility claim before the BIA, preventing appellate review of that issue.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Scope of appellate review over BIA decisions declining sua sponte reopening
Whether fundamental changes in law obligate the BIA to reopen proceedings
Preservation of issues for appellate review

Procedural posture

Solano petitioned for review of the BIA's affirmance of an Immigration Judge's denial of his untimely motion to reopen.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

MEMORANDUM ***

Petitioner German Jaimes Solano (Solano), a native and citizen of Mexico, petitions for review of the decision of the Board of Immigration Appeals (BIA) affirming the Immigration Judge (IJ)’s denial of his untimely motion to reopen. Our jurisdiction arises under 8 U.S.C. § 1252. The BIA declined to reopen pursuant to its sua sponte authority. We generally lack jurisdiction to review the BIAs decision not to reopen proceedings sua sponte under 8 C.F.R. § 1003.2(a). See Singh v. Holder, 771 F.3d 647, 650 (9th Cir. 2014). Thus, we review only for “legal or constitutional error.” Bonilla v. Lynch, 840 F.3d 575, 588 (9th Cir. 2016). Because the parties are familiar with the facts, we will not recite them here. We dismiss the petition.

1. We lack jurisdiction to review the BIAs decision. Solano asserts that the BIA rested its decision on a legal error because it wrongly determined that the Supreme Courts decision in Moncrieffe v. Holder, 569 U.S. 184, 133 S.Ct. 1678, 185 L.Ed.2d 727 (2013)––and by extension, our decision in United States v. Aguilera-Rios, 769 F.3d 626 (9th Cir. 2014)––does not represent a fundamental change in the law and therefore does not constitute an exceptional circumstance warranting sua sponte reopening. But we recently made clear that the BIA “is not required ․ to reopen proceedings sua sponte in exceptional situations, even those involving a fundamental change in the law.” Lona v. Barr, 958 F.3d 1225, 1234–35 (9th Cir. 2020) (cleaned up). Thus, the BIA was under no obligation to exercise its sua sponte authority to reopen even if Moncrieffe constitutes a fundamental change.

2. Because Solano failed to raise the issue before the BIA, we also lack jurisdiction to address Solanos claim that, following Pereira v. Sessions, ––– U.S. ––––, 138 S. Ct. 2105, 201 L.Ed.2d 433 (2018), he is eligible for cancellation of removal. 8 U.S.C. § 1252(d)(1).

PETITION DISMISSED.

FOOTNOTES

. Solano also argues that the BIA erred in finding that he had not filed a motion to reopen directly with the BIA, rendering 8 C.F.R. § 1003.2(g)(3)’s provisions on unopposed motions inapplicable. But even if the BIA erred in this regard, the BIA had no obligation to grant Solanos motion simply because it was unopposed. See Limsico v. INS, 951 F.2d 210, 213 (9th Cir. 1991).