NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS OCT 13 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT CLARA NOEMY MEJIA-DE No. 18-71290 CALDERON; BRITANY NOEMI CALDERON-MEJIA, Agency Nos. A208-290-316 A208-290-315 Petitioners, v. MEMORANDUM* WILLIAM P. BARR, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted October 8, 2020** Seattle, Washington Before: GILMAN,*** CALLAHAN, and CHRISTEN, Circuit Judges. Clara N. Mejia-de Calderon (Mejia) is a native and citizen of El Salvador. She petitions for review of the Board of Immigration Appeals’s (BIA’s) decision * 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 Ronald Lee Gilman, United States Circuit Judge for the U.S. Court of Appeals for the Sixth Circuit, sitting by designation. denying her request that the BIA exercise its sua sponte power to reopen. Our jurisdiction is governed by 8 U.S.C. § 1252. We review the denial of a motion to reopen under the abuse-of-discretion standard, and we review questions of law de novo. Bonilla v. Lynch, 840 F.3d 575, 581 (9th Cir. 2016). Denials of motions to sua sponte reopen, however, are reviewed only to the extent that the BIA relied on an incorrect legal or constitutional premise in deciding whether there were “exceptional circumstances” warranting reopening. Id. at 588. Mejia does not dispute the untimeliness of her motion to reopen or the BIA’s determination that no exceptions to the filing deadline applied. Rather, the issue before us is whether the BIA erred in denying Mejia’s request to exercise its sua sponte power to reopen. The BIA has held that its power to do so is limited to “exceptional situations.” In re J-J-, 21 I. & N. Dec. 976, 984 (BIA 1997). In the present case, the BIA determined that no exceptional circumstances existed to warrant the exercise of its sua sponte authority. When reviewing the BIA’s decision not to reopen Mejia’s proceeding sua sponte, our jurisdiction is limited to “reviewing the reasoning behind the decision[ ] for legal or constitutional error.” Bonilla, 840 F.3d at 588 (concluding that the denial of sua sponte reopening was based on “an incorrect legal premise” that was contrary to the substantive law governing the relief available to the petitioner); see also Singh v. Holder, 771 F.3d 647, 653 (9th Cir. 2014) (holding 2 that there was jurisdiction over the denial of sua sponte reopening because the BIA’s decision rested on the erroneous conclusion that it did not have the authority to reopen). Judicial review is therefore appropriate 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, see Singh, 771 F.3d at 650, or that exercising its discretion would be futile, ...
Original document
Source: All recent Immigration Decisions In All the U.S. Courts of Appeals