Jenaro Morales Flores v. Merrick Garland

FILED NOT FOR PUBLICATION FEB 9 2023 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT JENARO MORALES FLORES, No. 20-71302 Petitioner, Agency No. A073-967-288 v. MEMORANDUM* MERRICK B. GARLAND, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted February 6, 2023** Pasadena, California Before: BOGGS,*** IKUTA, and DESAI, Circuit Judges. Jenaro Morales Flores (Morales Flores) appeals the decision of the Board of Immigration Appeals (BIA) dismissing his appeal from an Immigration Judge’s * 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 Danny J. Boggs, United States Circuit Judge for the U.S. Court of Appeals for the Sixth Circuit, sitting by designation. (IJ) decision denying his motion to reopen proceedings sua sponte to allow him to apply for adjustment of status. Our jurisdiction is governed by 8 U.S.C. § 1252. We lack jurisdiction to review a denial of sua sponte reopening except for “the limited purpose of reviewing the reasoning behind the decision for legal or constitutional error.” Bonilla v. Lynch, 840 F.3d 575, 588 (9th Cir. 2016). Morales Flores has forfeited any argument that the BIA committed a legal or constitutional error in denying his motion to reopen as untimely and number barred by failing to raise the issue on appeal. See Floyd v. Filson, 949 F.3d 1128, 1138 n.2 (9th Cir. 2020). Nor did the BIA commit a legal or constitutional error in holding that Morales Flores failed to show prima facie eligibility for adjustment of status, because Morales Flores is not an alien “inspected and admitted or paroled into the United States,” and so does not meet the threshold requirement for adjustment of status. 8 U.S.C. § 1255(a). Morales Flores’s argument that he will be eligible for adjustment of status if he is granted parole in place, which may occur if the BIA reopens his proceedings to allow him to apply for parole-in-place, is speculative, and does not demonstrate prima facie eligibility for relief. See id.; see also Obitz v. Dist. Dir. of INS, 623 F.2d 1331, 1332 (9th Cir.1980) (en banc). Finally, the BIA did not commit a legal or constitutional error by failing to provide additional explanation to support its conclusion that Morales Flores was 2 not prima facie eligible for adjustment of status. See INS v. Abudu, 485 U.S. 94, 104–05 (1988). The BIA did commit a legal error, however, in denying Morales Flores’s request to terminate his removal proceedings on the ground that he “did not identify a legal basis for termination.” In reaching this decision, the BIA relied on Matter of S-O-G- & F-D-B-, 27 I. & N. Dec. 462, 463 (A.G. 2018), which held that an IJ could generally terminate removal proceedings only when permitted by the applicable regulations, see 8 …

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