NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS AUG 4 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT ALEJANDRO ORTIZ-ALFARO, No. 18-73312 Petitioner, Agency No. A029-677-022 v. MEMORANDUM* WILLIAM P. BARR, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Argued and Submitted July 6, 2020 Portland, Oregon Before: BENNETT and MILLER, Circuit Judges, and PEARSON,** District Judge. Alejandro Ortiz-Alfaro petitions for review of the immigration judge’s denial of Ortiz-Alfaro’s motion for sua sponte reopening. We have jurisdiction under 8 U.S.C. § 1252(a)(1). See Bartolome v. Sessions, 904 F.3d 803, 815 (9th Cir. 2018). Our review is limited to determining whether the immigration judge’s * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Benita Y. Pearson, United States District Judge for the Northern District of Ohio, sitting by designation. decision rested on “legal or constitutional error.” Bonilla v. Lynch, 840 F.3d 575, 588 (9th Cir. 2016); see 8 U.S.C. § 1252(a)(2)(D). Ortiz-Alfaro presents challenges to both legal and discretionary determinations by the immigration judge. We deny the petition in part and dismiss it in remaining part. 1. We agree with Ortiz-Alfaro that the immigration judge did not simply exercise discretion to deny reopening because Ortiz-Alfaro had not satisfied the standard of Matter of Beckford, 22 I. & N. Dec. 1216 (B.I.A. 2000) (en banc). Rather, the immigration judge held that satisfying Beckford was a legal requirement. In Beckford, the Board required a petitioner seeking sua sponte reopening to “at a minimum . . . demonstrate a substantial likelihood that the result in his case would be changed if reopening is granted.” Id. at 1219. The immigration judge in the case at bar explained that “to warrant sua sponte reopening,” Ortiz-Alfaro had to satisfy Beckford. The immigration judge then rejected Ortiz-Alfaro’s claim because Ortiz-Alfaro had not “demonstrated a ‘substantial likelihood’ that the outcome of a reopened reasonable fear hearing would be different.” But we do not agree that the immigration judge legally erred by applying the “substantial likelihood” standard of Beckford. Ortiz-Alfaro argues that Beckford “did not purport to hold that all motions” for sua sponte reopening “must demonstrate a ‘substantial likelihood’” of a different outcome. We do not read 2 Beckford as announcing a holding limited to its facts. The Board spoke clearly: the “substantial likelihood” standard is a “minimum” requirement to warrant sua sponte reopening. Beckford, 22 I. & N. Dec. at 1219. The context of Beckford supports that reading. Among other things, the Board declined to adopt an alternative standard, proposed by two dissenting board members, under which the petitioner in that case showed that reopening was warranted because a failure to reopen his case would “result in a miscarriage of justice.” Id. at 1219–20. We recognize that Beckford’s “substantial likelihood” standard represents a narrowing of the “exceptional situation” test set out in Matter of J-J-, 21 I. & N. Dec. ...
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