FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

FERNANDO MENENDEZ-GONZALEZ,

AKA Fernando Menedez,

Petitioner,

v.

WILLIAM P. BARR, Attorney

General,

Respondent.

No. 15-73869

Agency No.

A072-062-253

OPINION

On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted January 14, 2019

San Francisco, California

Filed July 11, 2019

Before: J. Clifford Wallace, Richard R. Clifton,

and Michelle T. Friedland, Circuit Judges.

Opinion by Judge Clifton
2 MENENDEZ-GONZALEZ V. BARR

SUMMARY*

Immigration

Denying Fernando Menendez-Gonzalez’s petition for

review of a decision of the Board of Immigration Appeals

denying sua sponte reopening, the panel explained that it had

jurisdiction for the limited purpose of identifying legal or

constitutional error, but concluded that Menendez-Gonzalez

had established no such error through his claims that (1) the

BIA irrationally departed from a settled practice of granting

sua sponte reopening when the conviction underlying a

removal order is vacated, and (2) the BIA violated its

regulations when it failed to remand the case to the

immigration judge for factfinding.

Based on a conviction for cocaine possession, MenendezGonzalez was deported in 1994, but later re-entered the

United States illegally. After his conviction was vacated in

2009 because there was no preliminary hearing transcript to

assess whether he was properly advised of the consequences

of his plea bargain, Menendez-Gonzalez filed a motion to

reopen. As relevant here, the BIA concluded that he had not

demonstrated that the vacatur of his conviction was an

“exceptional circumstance” warranting sua sponte reopening. 

The panel explained that denials of motions to reopen sua

sponte generally are not reviewable because the decisions are

committed to agency discretion, but that the court recognized

one narrow exception in Bonilla v. Lynch, 840 F.3d 575 (9th

* This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
MENENDEZ-GONZALEZ V. BARR 3

Cir. 2016), which held that the court has jurisdiction to

review BIA decisions denying sua sponte reopening for the

limited purpose of reviewing the reasoning behind the

decisions for legal or constitutional error. 

Menendez-Gonzalez argued that this court had

jurisdiction under Bonilla and should grant his petition

because the BIA irrationally departed from a settled practice

of granting sua sponte reopening when the conviction

underlying a removal order is vacated. The panel rejected

that contention, concluding that Menendez-Gonzalez had not

demonstrated a pattern that was well established or clearly

defined. Noting that Menendez-Gonzalez cited to ten

unpublished BIA decisions over a period of about eight years

during which the BIA completed more than 30,000 cases each

year, the panel explained that citation of a few unpublished

decisions fell far short of establishing that the BIA has

effectively adopted a rule that vacatur of an underlying

conviction necessarily requires it to grant reopening sua

sponte.

The panel also rejected Menendez-Gonzalez’s contention

that the BIA violated the regulation that precludes it from

engaging in factfinding when deciding appeals. The panel

observed that the only “factfinding” Menendez-Gonzalez

challenged was whether he remained convicted and whether

his positive equities constituted “exceptional circumstances”

warranting reopening. However, the panel explained that the

legal significance of his conviction and its subsequent vacatur

presented a legal question that the BIA permissibly decided,

and that determining whether he presented “exceptional

circumstances” called for exercise of the agency’s discretion,

not factfinding. 
4 MENENDEZ-GONZALEZ V. BARR

Accordingly, the panel concluded that MenendezGonzalez’s petition did not fit within the narrow exception

that allows for judicial review where the BIA’s decision was

based on legal or constitutional error. 

COUNSEL

Stacy Tolchin (argued), Law Offices of Stacy Tolchin, Los

Angeles, California, for Petitioner.

Andrew B. Insenga (argued), Trial Attorney; Douglas E.

Ginsburg, Assistant Director; Office of Immigration

Litigation, Civil Division, United States Department of

Justice, Washington, D.C.; for Respondent.

OPINION

CLIFTON, Circuit Judge:

This court generally lacks jurisdiction to review a

decision by the Board of Immigration Appeals (“BIA”) not to

exercise its sua sponte authority to reopen removal

proceedings. Ekimian v. I.N.S., 303 F.3d 1153, 1154 (9th Cir.

2002). In Bonilla v. Lynch, however, we concluded that this

court has jurisdiction to review denial of a motion to reopen

sua sponte only “for the limited purpose of reviewing the

reasoning behind the decisions for legal or constitutional

error.” 840 F.3d 575, 588 (9th Cir. 2016).

Fernando Menendez-Gonzalez petitions for review of a

BIA decision denying sua sponte reopening based on the

vacatur of the criminal conviction underlying his removal
MENENDEZ-GONZALEZ V. BARR 5

order. This case thus presents the question of whether

Menendez-Gonzalez has established legal or constitutional

error in the BIA’s reasoning such that we have jurisdiction to

review that decision. See id. We conclude that MenendezGonzalez has not established such error and therefore deny

his petition.

I. Background

Fernando Menendez-Gonzalez is a native and citizen of

Peru who entered the United States in 1985 without being

legally admitted. In 1990, he was convicted in state court of

cocaine possession in violation of California Health & Safety

Code § 11351. He was subsequently charged as deportable

for entering without inspection and for controlled substance

and aggravated felony convictions based on his drug offense.

An immigration judge (“IJ”) found him deportable, and he

waived appeal. He was deported in 1994, but he re-entered

the United States illegally in the same year.

In 2009, Menendez-Gonzalez’s 1990 conviction was

vacated because there was no preliminary hearing transcript

to assess whether he was properly advised of the

consequences of his plea bargain, in violation of California

Penal Code § 1016.5. He then submitted to the immigration

court a motion to reopen based on the vacatur of his

conviction which, he contended, made him eligible for

adjustment of status and suspension of deportation.

The IJ denied the motion, concluding that she lacked

jurisdiction to reopen under the “departure bar” for removed

aliens. At the time, BIA precedent held that 8 C.F.R.

§ 1002.23(b)(1) precluded a previously-removed alien from

invoking the jurisdiction of the immigration court to consider
6 MENENDEZ-GONZALEZ V. BARR

a motion to reopen, even sua sponte. See generally Matter of

Armendarez-Mendez, 24 I. & N. Dec. 646 (BIA 2008).

Menendez-Gonzalez timely appealed to the BIA, which

dismissed his appeal. He then filed a petition for review in

this court. This court granted the government’s unopposed

motion to remand to the BIA in light of a subsequent Ninth

Circuit decision on the departure bar. In that case, ReyesTorres v. Holder, 645 F.3d 1073, 1075–77 (9th Cir. 2011), we

held that an alien who filed a motion to reopen after being

deported from the United States was not precluded by the

departure bar from pursuing the motion.

On remand, the BIA again denied the motion to reopen,

agreeing with the IJ’s alternate conclusion that the motion

was time-barred. A motion to reopen must be filed within 90

days of a final order of removal, or on or before September

30, 1996, whichever comes later. 8 C.F.R § 1003.23(b)(1).

The BIA declined to exercise its authority—discussed at

greater length below—to reopen the proceeding sua sponte,

because Menendez-Gonzalez had not demonstrated that the

vacatur of his conviction was an “exceptional circumstance”

warranting sua sponte reopening.

Menendez-Gonzalez again petitioned for review. This

court granted the petition and remanded to the BIA. In doing

so, we explicitly noted that we lacked jurisdiction to review

the BIA’s exercise of its discretionary authority to grant or

deny sua sponte reopening, describing that discretion as

“unfettered.” The remand was necessary, however, because

we could not determine whether the BIA’s decision was

based on such an exercise of discretionary authority or,

alternatively, on the application of a different standard used

to evaluate the merit of a collateral attack on the underlying

prior removal order. We thus asked the BIA to clarify the
MENENDEZ-GONZALEZ V. BARR 7

legal standard under which it denied sua sponte reopening.

Menendez-Gonzalez v. Holder, 597 F. App’x 435 (9th Cir.

2015).

The BIA again denied the motion to reopen, restating its

earlier conclusion and specifying that it applied the

“exceptional circumstances” standard applicable to sua

sponte reopening. Menendez-Gonzalez then filed this petition

for review.

II. Discussion

“The Board may at any time reopen or reconsider on its

own motion any case in which it has rendered a decision.”

8 C.F.R. § 1003.2(a). Similarly,“[a]n Immigration Judge may

upon his or her own motion at any time, or upon motion of

the Service or the alien, reopen or reconsider any case.”

8 C.F.R. § 1003.23(b)(1).

The election to reopen or reconsider on its own motion is

commonly called the exercise of “sua sponte” authority. See

Ekimian, 303 F.3d at 1155. In practice, the agency’s decision

to exercise its sua sponte authority is often not actually

initiated by the agency on its own but is instead prompted, as

here, by a party filing a motion to reopen sua sponte. See

Bonilla, 840 F.3d at 585 (“Since the enactment of IIRIRA,

where the timing and numerosity statutory requirements are

not met and equitable tolling is unavailable, the only way an

alien can reopen an adverse final order of removal is to ask

the Board to exercise its sua sponte authority . . . .”).

Nonetheless, as we noted at the outset of this opinion, denials

of motions to reopen sua sponte generally are not reviewable

because the decisions are committed to agency discretion.

Ekimian, 303 F.3d at 1159.
8 MENENDEZ-GONZALEZ V. BARR

We have recognized one narrow exception. We have

jurisdiction “to review Board decisions denying sua sponte

reopening for the limited purpose of reviewing the reasoning

behind the decisions for legal or constitutional error.”

Bonilla, 840 F.3d at 588. In recognizing our jurisdiction in

Bonilla, we expressed concern that the BIA’s denial in that

case may have been based on a mistaken legal premise, that

the petitioner1had already lost his permanent resident status

and would not regain it to become eligible for certain relief,

even if reopening were granted. Id. at 589. As a legal

proposition, we held that granting the motion to reopen would

vacate the final deportation order that caused the petitioner to

lose his permanent residence status, such that the reopening

would not be futile. Id. at 589–90.

We reaffirmed in Bonilla that if the BIA had exercised its

authority “without relying on a constitutionally or legally

erroneous premise, its decision will not be reviewable.” Id. at

592. Because we were “persuaded that the Board based its

decision on the legal error we ha[d] identified,” we remanded

to permit the BIA to “revisit its sua sponte reopening decision

on a proper understanding of its authority to grant Bonilla

relief if reopening is granted.” Id. at 591, 592. We held that

“[i]f, on remand, the Board again declines to exercise its sua

sponte authority to reopen, and does so without relying on a

constitutionally or legally erroneous premise, its decisionwill

not be reviewable.” Id at 592.

1 We use the term “petitioner” to refer to the party so described in this

court, the person seeking relief from an order of removal. In proceedings

before the BIA and the immigration court, that person is denominated the

“respondent.” The potential for confusion is evident, so we make clear

how we are using the term.
MENENDEZ-GONZALEZ V. BARR 9

Menendez-Gonzalez raises two legal claims in arguing

that this court has jurisdiction under Bonilla and should grant

his petition: (1) that the BIA irrationally departed from its

settled practice of granting sua sponte reopening when the

conviction underlying a removal order is vacated, and (2) that

the BIA violated its regulations when it failed to remand the

case to the IJ. We are not persuaded by either argument.

A. Inconsistency with a Settled Course of Adjudication

This court generally lacks jurisdiction to review decisions

denying sua sponte reopening because of “the absence of a

judicially manageable standard for us to evaluate the BIA’s

exercise of discretion.” Singh v. Holder, 771 F.3d 647, 650

(9th Cir. 2014). Even when we recognized in Bonilla our

limited jurisdiction to review BIA decisions denying sua

sponte reopening, we affirmed our prior holding that the

“‘exceptional situation’ benchmark does not provide a

sufficiently meaningful standard to permit judicial review.”

Bonilla, 840 F.3d at 586. Menendez-Gonzalez contends that

the BIA has a settled practice of finding that the vacatur of

a criminal conviction is an exceptional circumstance

warranting sua sponte reopening, and that it irrationally

departed from this settled practice in his case.

Menendez-Gonzalez argues that this court should follow

a decision by the Third Circuit and hold that orders denying

sua sponte reopening are subject to judicial review when the

BIA departs from its settled practice. The Third Circuit has

recognized such a “settled course” exception allowing it to

review orders denying sua sponte reopening when petitioners

“establish that the BIA has limited its discretion via a policy,

rule, settled course of adjudication, or by some other method,

such that the BIA’s discretion can be meaningfully reviewed
10 MENENDEZ-GONZALEZ V. BARR

for abuse.” Sang Goo Park v. Attorney Gen., 846 F.3d 645,

653 (3d Cir. 2017).

Menendez-Gonzalez cites to another Third Circuit case

remanding to the BIA to clarify its basis for denying a motion

forsua sponte reopening based on a vacated conviction, Cruz

v. Attorney Gen., 452 F.3d 240, 250 (3d Cir. 2006). In that

case, the BIA concluded that sua sponte reopening was not

“warranted for any reason” but did not refer to vacatur of the

conviction that was the sole basis of inadmissibility, and the

Third Circuit remanded for the BIA to clarify whether it

arrived at its conclusion based on an exercise of its unfettered

discretion, such that its decision would not be subject to

review. Id. at 242, 250. Menendez-Gonzalez also cites the

Supreme Court’s statement in I.N.S. v. Yueh-Shaio Yang,

519 U.S. 26, 32 (1996), that if the BIA “announces and

follows—by rule or by settled course of adjudication—a

general policy by which its exercise of discretion will be

governed, an irrational departure from that policy” could

constitute arbitrary or capricious action subject to reversal.

It may be that the BIA’s departure from an established

policy, set “by rule or by settled course of adjudication,” id.,

could amount to a legal or constitutional error, but the

existence of a “settled course” cannot be lightly inferred. The

question is whether the agency has acted to constrain its

otherwise unfettered discretion.

Even under the Third Circuit’s cases, the petitioner must

establish that the pattern of dispositions is “clearly defined”

so the BIA’s discretion can be “meaningfully reviewed.”

Park, 846 F.3d at 653. It is insufficient if the petitioner

identifies a “‘pattern’ of dispositions whose contours are not

clearly defined or which is not tailored to the petitioner’s
MENENDEZ-GONZALEZ V. BARR 11

circumstances.” Id. Menendez-Gonzalez has not

demonstrated a pattern that is well established or clearly

defined.

Menendez-Gonzalez cites to ten unpublished BIA

decisions over a period of about eight years, a period of time

when the BIA completed more than 30,000 cases each year.

Executive Office for Immigration Review, FY 2013 Statistics

Yearbook S1 (2014); Executive Office for Immigration

Review, FY 2016 Statistics Yearbook Q2 (2017). He argues

that those citations demonstrate a “pattern” of BIA orders

granting sua sponte reopening following vacatur of a

conviction, and that this pattern established a sufficiently

“settled course” that constrained the BIA’s discretion and

obligated it to exercise its sua sponte authority to reopen his

case.

We do not agree. Among the thousands of decisions made

by the BIA over many years, it is not at all remarkable or

persuasive to be able to find a few that seem to have elements

in common with a current litigant’s case. That is especially

true with unpublished dispositions, as they generally include

only brief descriptions, if any, of facts that may influence the

exercise of discretion.2 Citation of a few unpublished

decisions falls far short of establishing that the BIA has

effectively adopted a rule that vacatur of an underlying

conviction necessarily requires it to grant reopening sua

sponte, effectively eliminating the discretion that the BIA

2 Among the cases Menendez-Gonzalez cites, many have factual

features that potentially distinguish them from his appeal. For example, in

all but two of the cases he cites where the BIA decided to reopen sua

sponte, the Government either did not oppose or did not respond to the

noncitizen’s motion to reopen.
12 MENENDEZ-GONZALEZ V. BARR

would otherwise have to examine the specifics of an

individual petitioner’s case.

Moreover, we note that in declining to exercise its

discretion in favor of Menendez-Gonzalez’s motion, the BIA

stated that vacatur of his 1990 conviction “solely on the basis

of proceedings commenced nearly 15 years after the

execution of his lawful deportation order” did not constitute

an “exceptional circumstance” justifying sua sponte

reopening. There have been other decisions over the years in

which the BIA declined to exercise itssua sponte authority to

reopen after determining that vacatur of the underlying

conviction did not constitute an “exceptional circumstance”

sufficient to warrant such an extraordinary remedy. See In Re

Tunbosun Olawale William, 2008 WL 5537807, at *3–4 (BIA

Dec. 23, 2008) (unpublished); In Re: Hugo Vara-Martinez,

2012 WL 3276566 (BIA July 13, 2012) (unpublished). Even

if we concluded that there was a sufficiently established

pattern of granting sua sponte reopening where the

underlying conviction had been vacated—and we have

not—Menendez-Gonzalez has not established any “incorrect

legal premise” in the BIA’s decision not to reopen sua sponte

where the petitioner waited years before moving to reopen.

See Bonilla, 840 F.3d at 588.

The citation by Menendez-Gonzalez to a relative handful

of unpublished BIA decisions arriving at different

conclusions does not establish a “settled pattern of

adjudication” or provide us with any meaningful standard to

apply to limit the agency’s exercise of discretion. We only

have jurisdiction “for the limited purpose of identifying legal

or constitutional error,” id. at 586, and no such error is

apparent in the record before us.
MENENDEZ-GONZALEZ V. BARR 13

B. BIA Regulations

Under 8 C.F.R. § 1003.1(d)(3)(iv), “the Board will not

engage in factfinding in the course of deciding appeals.”

Menendez-Gonzalez argues the BIA violated this provision

by making factual findings instead of remanding his case to

the IJ for factfinding. “Where the IJ has not made a finding of

fact on a disputed matter, and such a finding is necessary to

resolution of the case, the BIA must remand to the IJ to make

the required finding; it may not conduct its own fact-finding.”

Rodriguez v. Holder, 683 F.3d 1164, 1170 (9th Cir. 2012).

Although Menendez-Gonzalez argues that the BIA

violated this rule, he has not identified the finding of any

disputed facts that mattered for the BIA’s decision. The only

“factfinding” he challenges is whether he remained convicted

and whether his positive equities constituted “exceptional

circumstances” warranting reopening. It is not disputed that

Menendez-Gonzalez was convicted in 1990 and the

conviction was set aside under state law in 2009 because he

might not have been properly advised of the consequences of

his plea bargain. The legal significance of those events

presented a legal question that the BIA permissibly decided.

Determining whether he presented “exceptional

circumstances” called for exercise of the agency’s discretion,

not factfinding.

The relevant regulations also provide that “[a] party

asserting that the Board cannot properly resolve an appeal

without further factfinding must file a motion for remand.”

8 C.F.R. § 1003.1(d)(3)(iv). Menendez-Gonzalez did not file

such a motion and did not ask the BIA to remand. Instead he

simply argued that sua sponte reopening was warranted and

that “[t]he Board should therefore order that Respondent’s
14 MENENDEZ-GONZALEZ V. BARR

case be reopened so that he may proceed with his

applications.” He apparently did not see the need for

additional factfinding then. We do not see it now. See PerezPalafox v. Holder, 744 F.3d 1138, 1145 (9th Cir. 2014)

(“Although Perez-Palafox accuses the BIA of engaging in

improper factfinding, he does not point to any fact found by

the IJ that was ignored by the BIA, or any fact found by the

BIA that was not found by the IJ.”).

Nor was it necessary for the BIA to remand the matter to

the IJ in order to let the IJ offer her view on the exercise of

discretion. Under 8 C.F.R. § 1003.1(d)(3)(ii), “[t]he Board

may review questions of law, discretion, and judgment and all

other issues in appeals from decisions of immigration judges

de novo.” Menendez-Gonzalez argues the BIA erred in

making a discretionary decision in the first instance because

the regulations only permit de novo “review” of the IJ’s

exercise of discretion. The word “review” does not prohibit

the BIA from exercising its own discretion in the first

instance. See, e.g., Wood v. Mukasey, 516 F.3d 564, 569

(7th Cir. 2008) (“Provided the BIA can do so without

additional fact-finding, 8 C.F.R. § 1003.1(d)(3)(iv), we see

no reason why it must avoid issues of discretion in an appeal

because they were never reached by the IJ.”). The BIA did

not violate section 1003.1(d)(3)(ii) by declining to exercise

its discretionary sua sponte authority without remanding to

the IJ.

III. Conclusion

The petition for review is denied. We generally lack

jurisdiction to review a decision by the BIA not to exercise its

sua sponte authority to reopen proceedings. This petition does
MENENDEZ-GONZALEZ V. BARR 15

not fit within the narrow exception where the BIA’s decision

was based on legal or constitutional error.

PETITION FOR REVIEW DENIED.