FOR PUBLICATION



### UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

F E R N A ND O M E

NE ND EZ -G ONZAL EZ , AKA Fernando Menedez, Petitioner ,

v

.
W I L L I AM P. B AR

R , Attorney General, Respondent. No. 15-73869
Agency No. A072-062-253

OPINION

On Petition for Review of an Order of the Board of Imm igration Appeals
Argued and Subm itted January 14, 2019 San Francisco, California
Filed July 11, 2019

Before: J. Clifford W allace, Richard R. Clifton, and Michelle T. Friedland, Circuit Judges.
Opinion by Judge CliftonM E NE ND EZ -G ONZAL EZ V

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SUMMARY *

Immigration
Denying F ernando Mene n dez-Gonzalez’s petition for review of a decision o f the B oard of Imm igration Appeals denying sua sponte reopening, the panel explained that it h ad jurisdiction for the lim ited p urpose of identifying legal o r constitutional error, but concluded that Menendez-Gonzalez had established no such error t hrough his claim s that (1) the BIA irrationally departed f rom a settled practice of granting

sua sponte reo p e ning when the conviction underlying a
rem oval order is vacated, and (2) the BI A v iolated its regulations when it failed to rem and the case to the imm igration judge for factfind ing.

Based o n a conviction for cocaine possession, MenendezGonzalez was deported in 1994, but later re
- e ntered the United States illegally. After his conviction was v acated in 2009 b ecause there was no prelim inary hearing transcript to
assess whether he was p roperly advised of the consequences of h i s plea bargain, Menendez-Gonzalez filed a m otion to reopen. As relevant here, the BIA concluded that he h ad not dem onstrated that the vacatur of his conviction was an “ex cep tio n al circu

m s tan ce” warranting sua sponte reopenin g

.
The panel explained that denials of m otions to reopen sua sponte generally are not reviewable because the decisions are
comm itted to agency discretion, but that the court recognized

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

* This summ ary constitutes no part of the opinion of the court. It h as been prepared by court staff for the convenience of the reader.M E NE ND EZ -G ONZAL EZ V

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Cir. 2016), which held that the court h a s jurisdiction to review BIA decisions denying sua sponte reopening for the lim ited p urpose of reviewing th e r e a soning behind the decisions for legal or constitutional error.

Menendez-Gonzalez argued that this court h ad juris d iction under Bonilla and should grant his petition because the B IA irrationally departed f rom a settled practice of granting sua sponte reopening when the conviction underlying a rem oval order is vacated

. The panel rejected that contention, concluding that Menendez-Gonzalez had not dem onstra ted a pattern that was well established or clearly defined. Noting that Menendez-Gonzalez cited t o ten unpublished BIA decisions over a period of about eight years during which the BIA com p leted m ore than 30,000 cases each year , th e panel explained that citation of a few unpublished decisions fell far short of establishing that the BIA has effectively ado p t ed a rule that vacatur of an underlying conviction n ecessarily requires it to grant reopening sua sponte

.
The panel also rejected Men endez-Gonzalez’s contention th a t th e BIA v iolated the regulation that precludes it from engaging in factfinding when deciding appeals. The panel observed that th e only “factfinding” Menendez-Gonzalez challenged w as whether he rem ained convicted and whether his positive equities constituted “exceptional circum stances” warranting reopening. H owever, the p anel explained that the legal significance o f h is conviction and its subsequent v acatur presented a legal question that the BIA perm issibly decided, and that determ ining whether he presented “ex ce p tional circum stances” called for exercise of the agency’s d iscretion, not factfinding.M E NE ND EZ -G ONZAL EZ V

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Accordingly, the panel concluded that MenendezGonzalez ’ s p etition did not fit w ithin the narrow exception that allows for judicial review where the BIA’s decision was based on legal or constitutional error.

C OUNSEL
Stacy Tolchin ( argued), Law O ffices o f Stacy Tolchin, Los Angeles, California, for Petitioner.

Andrew B. Insenga (argued), Trial Attorney; Douglas E. Ginsburg, Assistant Director; O ffice o f Imm igration Litigation, Civil Division, United States Departm ent o f Justice, W ashington, D.C.; for Respo n dent.

OPINION
CLIFTON, Circuit Judge:

This court generally lacks jurisdiction to review a decision by the Board of Imm igration Appeals (“BIA”) n ot to
e xercise its sua sponte authority to reopen rem oval proceedings. Ekimian v. I.N.S. , 303 F.3d 1153, 1154 (9th Cir. 2002). In Bo n i lla v. Lynch , however, we concluded that this court has jurisdiction to review denial o f a m o tion to reopen

sua spont e o nl y “for the lim ited purpose of reviewing the reasoning b ehind the decision s for legal or constitutional error.” 840 F.3d 575, 588 (9th Cir. 2016).

Fernando Menendez-Gonzale z petitions f or review o f a BIA decision denying sua sponte reopening based on the vacatur of the crim in a l conviction underlying h is rem ovalM E NE ND EZ -G ONZAL EZ V

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ord e r

. T his case thus presents the question of whether Menendez-Gonzalez has established legal o r constitutional

error in the BIA’s reasoning such that w e have jurisdiction to review that decision. S

ee id. W e conclude th a t M e nendezGonzalez has not established such error and therefore deny his petition.

I. Background

Fe rn ando Menendez-Gonzalez is a n ative and citizen of Peru who entered the United St a t e s in 1985 without being legally adm itted. In 1 990, he w as convicted in state court of cocaine possession in v iolation of California Health & Safety Code § 11351. He was subsequently charged as deportable for entering wi thout inspection and for controlled substance and aggravated felony convictions b ased on his drug offense. An imm igr at i on judge (“IJ”) found him deportable, and he waived appeal. He was deported in 1994, but he re-entered the United States illegally in the sam e year.

In 2009, Menendez-Gonzale z ’ s 1990 conviction was vacated because there was no prelim inary hearing transcript to as s e ss whether he was properly advised of the consequences of his plea bargain, in violat i o n of California Penal Code § 1 016.5. He then subm itted to the imm igration court a m otion to reopen based on the vacatur o f his conviction which, h e contended, m ade hi m e l i gible for adjustm ent of status and suspension of deportation.

The I J denied the m otion, concluding that she lacked jurisdiction to reopen under the “departure b ar” for rem oved aliens. At the tim e, BI A precedent held that 8 C.F.R. § 1002.23(b)(1) precluded a previously-rem oved alien from invoking the jurisdiction of the imm igration court to considerM E NE ND EZ -G ONZAL EZ V

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a m otion to reopen, even sua sponte

. See generally Matter of Armendarez-Me n d

e z , 24 I. & N. Dec. 646 (BIA 2008). Menendez-Gonzalez tim ely appealed to the B IA, which dis mi ssed his appeal. He then filed a p etition for review in this court. T his court granted the governm ent’s un o pposed

m otion to rem and to the BIA in light o f a sub s e quent Ninth Circuit decision on the d eparture bar

. In that case, ReyesTorres v. Holder , 645 F.3d 1073, 1 075–77 (9th Cir. 2011), we held that an alien who fi l ed a m otion to reopen after being deported from the Unite d States was not precluded by the departure bar frompursuing the m otion.

On rem and, the BIA again denied the m otion to reopen , agreeing w ith the IJ’s alternate conclusion that the mo t i on
was tim e-barred. A m otion to reopen m ust be filed within 90 days of a f

inal order of rem oval, or on or before Septem ber 30, 1996, whichever com es later. 8 C.F.R § 1003.23(b)(1). The BIA d eclined t o exercise its authority—discussed at greater length bel o w—to reopen the p roceeding sua sponte , because Menendez-Gonzalez had not dem o n s trated that the vacatur of his conviction was an “exceptional circum stance” warranting sua sponte reopening.

Menendez-Gonzalez agai n petitioned for review. This court granted the petition and rem anded to the BIA. In doing so, we expl i c itly noted that we lacked jurisdiction to review th e BIA’s exercise of its discretionary authority to g ra n t o r deny sua sponte reopening, describing that discretion as “unfettered.” The rem and was necessary, however, because

we could not determ ine whether the B IA’s d e cision was based on such an exercise o f d iscreti onary authority or, alternatively, o n th e application of a different standard used t o evaluate the m erit of a collateral attack on the underly i n g prior rem oval order. W e thus asked the BIA to cl ar ify theM E NE ND EZ -G ONZAL EZ V

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legal standard under which it denied sua sponte reopening. Menendez-Gonzalez v. H o ld e r , 5 97 F. App’x 435 (9th Cir. 2015).

The B IA again denied the m otion to reopen, restating its earlier conclusion and specifyin g th at it applied the “exceptional circum stances” stand ard applicable to sua sponte reopening. Menen d e z-G o n zalez th en f iled th is petition for review.

II. Discussion

“The Boar d m ay at any tim e reopen or reconsider on its

own m oti o n any case in which it has rendered a decision.” 8 C.F.R. § 1003.2(a). Sim ilarly,“[a]n Imm igration Judge m ay upon his or h e r o wn mo tion at any tim e, or upon m otion o f the Service or th e a l ien, reopen o r reconsider any case.” 8 C.F.R. § 1003.23(b)(1).

The election to reopen or reconsider on its own m o tion is

comm only called the exercise of “sua sponte” authority. See Ekimian , 303 F.3d at 1 155. In practice, the agency’s decision to exercise i t s s u a sponte authority is often not actually initiated by the agency on its own but is instead prom pted, as here, b y a p arty filing a m otion to reopen sua sponte

. See Bonilla , 840 F.3d at 585 (“Since the enactm ent o f IIRIRA, whe r e the tim ing and num erosity statutory requirem ents are not m et and equitable tolling is unavailable, the only w ay an alien can reopen an adverse final order of rem oval is to ask the Board to exercise its sua sponte auth o r i ty

. . . .”). Nonetheless, as we noted at the outset of this opinion, d enials of m otions to reopen sua sponte generally are not reviewable because the decisions are comm itted to agency d iscretion. Ekimian , 303 F.3d at 1159.M E NE ND EZ -G ONZAL EZ V

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W e have recognized one narrow exc e p t ion. W e have jurisdiction “to review B oard d ecisions denying sua s ponte reopening for the lim ited purpose of reviewing the reasoning behind the d ecisions for legal or constitut i o n a l error.” Bonilla , 840 F.3d at 588. In recognizing our jurisdic t i on in Bonilla , we expressed concern that the BIA’ s d en ia l in that

case m ay h ave been based on a m istaken lega l p r em ise, that the petitioner 1 had already lost his p erm anent resident status and w ould not regain it to becom e eligible for certain re lief,

even if reopening wer e g r anted. Id

. at 5 89. As a legal proposition, we held that g ranting the m otion to reopen would vacate the final deportation o rder that caused the petitioner to lose his perm anent residence statu s , such that the reopening would not be futile. Id . at 589–90.

W e reaffirm ed in Bonilla that if the BIA had exercised its authority “without relying on a cons t i tutionally or legally

erroneous prem ise, its decision will n ot be reviewable.” Id. at 592. Because we w ere “ p ersuaded that the Board based its decision on the legal error we ha[d] identified,” we rem anded to perm it the BIA to “revisit its sua sponte reopening decision

on a p ro per understanding of its authority to grant B onilla relief if reopening is granted.” Id. at 591, 592. W e h eld that “[i]f, o n rem and, the Board again declines to exercise its sua sponte authority to reopen, and does so without relying on a

co n stitutionally or legally erroneous prem ise, its decisio n w i ll not be reviewable.” Id

at 592.

1 W e use the term “petitioner” to r efer to the party so described in t h is court, the person seeking r elief from an order of rem oval. In proceedings before the BIA and t

he i m m i gration court, that person is denom i nated the “respondent.” T he potential for confusion is evident, so we m ake clear how we are using the term

.M E NE ND EZ -G ONZAL EZ V

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Menendez-Gonzalez raises two legal claim s i n arguing that this court h as jurisdiction under Bonilla and should grant his petition: (1) that the BIA irrationally departed from its settled p ractice of granting sua sponte reopening wh e n the conviction underlying a rem oval order is vacated, and (2) that the BIA violated its regulations when it failed to rem and the case to the IJ. W e are not persuaded by either argum ent.

A. Inconsistency with a Settled Course of Adjudication

This court g enerally lacks jurisdiction to review d ecisions deny in g s u a sponte reopening because o f “the absence of a j u d ic i a lly m anageable standard for us to evaluate the BIA’s exercise o f discretion

. ” S

ingh v. Holder , 771 F.3d 647 , 650 (9th Cir. 2014). Even when we recognized in Bonilla our limi t ed jurisdiction to review BIA decisions denying sua sponte re o p ening, we affirm ed o ur prior holding that the “‘exceptional situation’ b enchm ark does not provide a sufficiently m eaningful standard t o p erm it judicial review.” Bonilla , 840 F.3d at 5 86. Menendez-Gonzalez contends that the BIA has a sett led practice of finding that the v acatur o f

a crim inal conviction is an excepti onal circum stance warranting sua sponte reopening, and that it irrationally departed fromthis settled practice in his case.

Menendez-Gonzalez argues that this court should f ollow 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 Circ ui t ha s recognized such a “ s ettled course” exception allowing it to review orders denying sua sponte reopening when petitioners “establish that the BIA has lim ited its discretion via a policy, rule, settled course of adjudication, or b y som e other m ethod, such that the BIA’s discretion can be m eaningfully reviewedM E NE ND EZ -G ONZAL EZ V

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for abuse.” S

ang Goo Park v. Attorney Ge n

. , 846 F .3d 645, 653 (3d Cir. 2017).

M enendez-Gonzalez cites to another Third Circuit c a s e
rem anding to the BIA to clarify its basis for denying a m otion for sua sponte reopening based on a vacated conviction, Cruz

v. Attorney Gen. , 4 52 F .3d 240, 250 ( 3 d Ci r

. 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 w as the sole b asis of inadm issibility, and the Third C ircuit rem anded for th e BI A to clarify whether it arrived at its conclusion b ased o n an exercise of its unfettered discretion, such that its decis i on wo u ld not be subject to review. Id

. a t 242, 250. Menendez-Gonzalez also cites the Suprem e Court’s statem ent in I.N.S. v. Yueh

- S h a io Yang , 5 19 U .S. 26, 32 (1996), that if the BIA “announces an d follows—by ru l e or by settled course of adjudication—a general p olicy by whi ch its exercise o f discretion will be governed, an irrat i o n a l d eparture from that policy” could constitute arbitrary or capricious action subject to reversal.

It m ay b e that the BIA’s de parture from an established policy, set “by rule or by settled course o f adjudication,” id ., could am o unt to a legal or constitutional error, bu t the existence of a “settled course” cannot be lightly inferred. The question is whether the agency h as acted to constrain its otherwise unfettered discretion.

Even under the Third Circuit’s cases, the petitioner m ust establish that the pattern of d is po sitions is “clearly defined”

so the BIA’s discretion can be “m eaningfully reviewed.” Park, 846 F.3d at 6 53. It is insufficient if the petitioner identifies a “‘pattern’ of dispositions whose contours are not cle ar l y defined or which is not tailored to the p etitioner’sM E NE ND EZ -G ONZAL EZ V

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c i r c u m s t a n c e s

. ” I

d

. M e n e n d e z
- G o n z a l e z h a s n o t dem onstrated a pattern that is w ell established or cl e ar ly defined.

Menendez-Gonzalez cites to ten unpublishe d B IA decisions o ver a period of about eight y ears, a period of tim e when the BIA com

p leted m ore than 30,000 cases each year. Executive Office for Imm igration Review, FY 2013 Statistics Yearbook S 1 (2014); Executive Office for Imm igration Review, FY 2016 Statistics Yearbook Q2 (2017). He argues that those citations dem onstrate a “ p a t t e rn” of B IA orders granting sua sponte reo p en ing following vacatur of a conviction, and that this pattern established a sufficiently “settled course” that constra i n e d the BIA’s discretion and obligated it to exercise its sua sponte authority to reopen his

case.

W e do not agree. Am ong the thousands of decisions m ade by the BIA over m an y y e ar s, it is not at all rem arkable o r persuasive to be able to find a few that seem to have elem ents in comm on w ith a current litigant’s case. That is especially true with unpublished dispositions, as they generally include only brief descriptions, if any, of facts that m ay influence the exercise of discretion. 2 Citation of a few unpubl ished decisio n s falls far short of establishing that the BIA has effecti v e ly adopted a rule that vacatur of an underlying conviction n ecessarily requires it to grant reopening sua sponte , effectively elim inati ng the discretion that the B IA

2 Am o ng the cases Menendez-Gonzalez c i t e s , m any have factual features that potentially distinguish them from his appeal. For exam ple, in all but t wo of the cases h e cites where t he BIA decide d t o re o p en sua sponte , t he Governm ent either did not oppose or did not respond to the noncitizen’s m otion to reopen.M E NE ND EZ -G ONZAL EZ V

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would otherwise have to exam ine the specifics of an individual petitioner’s case.

Moreover, we n o te that in declining to exercise its discretion in favor of Menendez-Gonzalez’s m otion, the B IA stated that vacatur of his 1990 conviction “solely on the basis of proceeding s comm enced nearly 15 years after the execution o f his lawful deportation order” did not constitute

an “exceptional circum stance” justifying s u a sponte reopening. T here have been other d ecisions over the years in which the BIA declined to exercise its sua sponte authority to reopen after d eterm ining that vacatur of the underlying

c o n viction d id not constitute an “exceptional circum stance” sufficient to warrant such an extraordinary rem edy. See In Re Tunbosun O lawale William , 2 008 W L 5537807, at * 3

–4 (BIA Dec

. 2 3 , 2 008) (unpublished); In Re: Hugo V ara-Martinez , 2012 WL 3276566 (BIA July 13, 2012) (unpublished). Even if we concluded th at there w as a sufficiently established pattern of granting sua sponte reopening where the und er l y ing conviction had been vacated—and we have not—Menendez-Gonzalez has not established any “incorrect legal prem ise” in the BIA’s decision not to reopen sua sponte where the p e t i tioner waited years before m oving to reopen. See Bonilla , 840 F.3d at 588.

The citation by Menendez-Gonzalez to a relative handful of unpublishe d BIA decisions arriving at different conclusions d o e s not establish a “settled pattern o f adjudication” o r provide us with any m eaningful standard to apply to lim it th e agency’s exercise of discretion. W e only have jurisdiction “for the lim ited p urpose of identifying legal

or constitutional error,” id. at 586, and no such e rror is apparent in the record before us.M E NE ND EZ -G ONZAL EZ V

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B. BIA Regulations

Under 8 C.F.R. § 1003.1(d)(3)(i v ), “the Board will not engage in factfinding in the course o f decidi n g ap p eals.” Menendez-Gonzalez argues the B IA violated this pr o vision by m aking f

actual findings instead o f rem an d i n g hi s case to the IJ for factfinding. “Where the IJ has not m ade a finding o f fact o n a dispute d mat t er, and such a finding is necessary to resolution of the case, the BIA m ust rem and to the IJ to m ake the required finding; it m ay not conduct its own fact-finding.” Rodriguez v. Holder , 683 F.3d 1164, 1170 (9th Cir. 2012).
Although Menendez-Gonzalez argues that th e BIA violated this rule, he h a s not identified the finding of any disputed facts that m attered for the BIA’s decision. The only “factfinding” he challenges is whether he rem ained convicted and whether his positive equities constituted “exceptional circum stances” warranting reopening. It is n ot disputed that Menendez-Gonzalez was convicted in 1990 an d the conviction was set a s i d e under state law in 2009 because he

m ight not have been properly advised o f the consequences o f his plea bargain. The legal significanc e of those events presented a legal question that the BIA perm issibly decided. D e t e r m i n i n g w h e t h e r h e p r e s e n t e d “ e x c e p t i o n a l circum stances” called for exercise of the agency’s d iscretion, not factfinding.

The relevant regulations also provide that “[a] party
a s s erting that the Board cannot properly resolve an appea l without further fa c t f

inding m ust file a m otion for rem and.” 8 C.F.R. § 1003.1(d)(3)(iv). Menendez-Gonzalez did not file such a m otion and d id not ask the BIA to rem and. Instead he sim ply argued that sua sponte reopening was warranted and that “[t]he B o ard should therefore order that Re s p o n dent’sM E NE ND EZ -G ONZAL EZ V

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case be reopened so that h e m ay p roceed with his applications. ” He apparently did not see the need for additional factfinding then. W e do not see it now. See PerezPalafox v. Holder , 744 F.3d 1138, 1 145 (9th Ci r

. 2 014) ( “ Although Perez-Palafox accuses the BIA of engaging i n im proper factfinding, he does not point to any fact found by the IJ that was ignored by the BI A, or any f act found by the BIA that was not found by the IJ.”).

Nor w as it necessary for the BIA to rem and the m atter to the IJ i n o r d e r t o l et the IJ offer her view on the exercise o f discret ion. Under 8 C.F.R. § 1003.1(d)(3)(ii), “[t]he Board

m ay review questions of law, discretion, and judgm ent and all other issues in appeals from decisions o f imm igration judges de novo .” Menendez-Gonzalez argues the BIA e rr ed in

m aking a discretionary decision in the first instance because the regul a ti o n s only p erm it de novo “review” of the IJ’s exercise of discretion. The w o rd “review” does not prohibit the BIA from exercising its o wn d iscretion in the first instance. S

ee, e.g. , Wood v. Mukasey , 516 F.3d 564, 569 (7th Cir. 200 8 ) ( “Provided the BIA can do so without add i tional f

act-finding, 8 C.F.R. § 1003.1(d)(3)(iv), we see
no reason why it m

ust avoid issues of discretion in an appeal because they were never reac he d b y the IJ.”). The BIA did not violate section 100 3.1(d)(3)(ii) by declining to exercise its discretionary sua sponte authority wi thout rem anding to the IJ.

III. Conclusion

The petition for review i s denied. W e generally lack jurisdiction to review a d ecision by the BIA n o t to exercise its

su a sp o n te aut

h o rity to reopen proceedings. This petition d o e sM E NE ND EZ -G ONZAL EZ V

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not fit within the narrow exception where the BIA’s decision was based on legal or constitutional error.

PETITION FOR REVIEW DENIED.