19-861

Bonilla-Reyes v. Garland

BIA

A089 271 991

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION 

TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED 

AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS 

COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT 

FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX 

OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A 

PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY 

NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals 

for the Second Circuit, held at the Thurgood Marshall 

United States Courthouse, 40 Foley Square, in the City of 

New York, on the 18th day of May, two thousand twenty-one.

PRESENT:

JON O. NEWMAN,

REENA RAGGI,

MICHAEL H. PARK,

Circuit Judges.

_____________________________________

SULMA YANETH BONILLA-REYES,

Petitioner,

v. 19-861

NAC

MERRICK B. GARLAND, UNITED 

STATES ATTORNEY GENERAL,

Respondent.

_____________________________________

FOR PETITIONER: Paul O’Dwyer, Esq., New York, NY.

FOR RESPONDENT: Joseph H. Hunt, Assistant Attorney 

General; Melissa Neiman-Kelting , 

Assistant Director; Richard 

Kelley, Trial Attorney, Office of 

Immigration Litigation, United 
2

States Department of Justice, 

Washington, DC.

UPON DUE CONSIDERATION of this petition for review of a 

Board of Immigration Appeals (“BIA”) decision, it is hereby 

ORDERED, ADJUDGED, AND DECREED that the petition for review 

is DISMISSED IN PART AND DENIED IN PART.

Petitioner Sulma Yaneth Bonilla-Reyes, a native and 

citizen of El Salvador, seeks review of a March 15, 2019, 

decision of the BIA denying her motion to reopen and 

reconsider. In re Sulma Yaneth Bonilla-Reyes, No. A 089 271 

991 (B.I.A. Mar. 15, 2019). We assume the parties’ 

familiarity with the underlying facts and procedural history.

We have reviewed the BIA’s denial of Bonilla-Reyes’s 

motions to reconsider and reopen for abuse of discretion. 

Ali v. Gonzales, 448 F.3d 515, 517 (2d Cir. 2006); see Jin 

Ming Liu v. Gonzales, 439 F.3d 109, 111 (2d Cir. 2006). It 

is undisputed that Bonilla-Reyes’s 2018 motion was untimely 

because the BIA issued a final order in 2013 adopting and 

affirming the IJ’s denial of asylum and related relief. See 

8 U.S.C. § 1229a(c)(6)(B), (7)(A), (C)(i); 8 C.F.R. 

§ 1003.2(b)(2), (c)(2). Accordingly, the only basis for 

reconsideration was the BIA’s authority to do so sua 
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sponte. See 8 C.F.R. § 1003.2(a). 

The BIA invokes its sua sponte authority only in 

“exceptional situations,” not as a “general cure for filing 

defects or to otherwise circumvent the regulations, where 

enforcing them may result in hardship.” In re J-J-, 21 I. & 

N. Dec. 976, 984 (B.I.A. 1997). The determination as to what 

circumstances warrant sua sponte reopening is entirely 

committed to the agency’s discretion. See Ali, 448 F.3d at 

517-18. We lack jurisdiction to review this “entirely 

discretionary” decision, id. at 518, and may remand only 

“where the [BIA] may have declined to exercise its sua sponte

authority because it misperceived the legal background and 

thought, incorrectly, that a reopening would necessarily 

fail,” Mahmood v. Holder, 570 F.3d 466, 469 (2d Cir. 2009). 

We find no such misperception here. Bonilla-Reyes 

failed to specify error in the prior decision as needed for 

reconsideration because the IJ did not find that rape could 

not rise to the level of persecution, but rather that there 

was insufficient evidence that Bonilla-Reyes was targeted on 

account of a protected ground. See Ke Zhen Zhao v. U.S. 

Dep’t of Justice, 265 F.3d 83, 90 (2d Cir. 2001). 
4

Additionally, Bonilla-Reyes could have asserted this 

purported error in her direct appeal. See In re O-S-G-, 24 

I. & N. Dec. 56, 58 (B.I.A. 2006) (“A motion to reconsider 

based on a legal argument that could have been raised earlier 

in the proceedings will be denied.”).

As for reopening,1 Bonilla-Reyes argues that the BIA 

misperceived the law in declining to reopen based on a change 

in law. Before the agency, she identified several cases that

the BIA decided after her removal proceedings and argued that 

they warranted reopening for reconsideration of whether she 

had identified a cognizable particular social group. The BIA 

did not misperceive the law in declining to reopen; the cases 

she cited addressed the requirements for a cognizable 

particular social group, but Bonilla-Reyes’s claim was 

rejected because she failed to show a nexus between her harm 

and her proposed group. See 8 U.S.C. § 1158(b)(1)(B)(i) 

(“the applicant must establish that race, religion, 

nationality, membership in a particular social group, or 

political opinion was or will be at least one central reason 

for persecuting the applicant”). 

1 Before the agency, the Petitioner also sought reopening on the basis of changed country conditions, but 

does not raise that claim in this Court.
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Accordingly, because the BIA simply concluded that 

Bonilla-Reyes did not present the type of extraordinary 

situation that would justify sua sponte reopening, we have no 

jurisdiction to review that discretionary decision. See 

Mahmood, 570 F.3d at 469. And because the BIA did not 

misperceive the law, her claim that the BIA erred by not 

reopening is without merit.

For the foregoing reasons, the petition for review is 

DISMISSED IN PART AND DENIED IN PART. All pending motions 

and applications are DENIED and stays VACATED.

FOR THE COURT: 

Catherine O’Hagan Wolfe,

Clerk of Court