Benito Meza-Diveni v. William Barr

• Court: Court of Appeals for the Ninth Circuit
• Decided: July 15, 2019
• Docket: 15-73285
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION JUL 15 2019 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

BENITO ESTEBAN MEZA-DIVENI, Nos. 15-73285 AKA Benito Estedan Meza, Jr., 15-73870

Petitioner, Agency No. A073-839-360 v.

WILLIAM P. BARR, Attorney General, MEMORANDUM*

Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals

Argued and Submitted January 14, 2019 San Francisco, California

Before: WALLACE, CLIFTON, and FRIEDLAND, Circuit Judges.

Benito Esteban Meza-Diveni petitions for review of decisions of the Board

of Immigration Appeals (“BIA”) denying his motion to reopen and subsequent

motion to reconsider to apply for cancellation of removal. We deny the petition.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. If the BIA declines to grant sua sponte reopening “without relying on a

constitutionally or legally erroneous premise,” its decision is not reviewable.

Bonilla v. Lynch, 840 F.3d 575, 592 (9th Cir. 2016). Meza-Diveni argues that this

court has jurisdiction because he raises six legal claims, but we are not convinced

by any of these claims.

First, Meza-Diveni argues that the BIA erred in applying a due diligence

requirement to his motion to reopen sua sponte. In concluding Meza-Diveni did

not establish an “exceptional situation” sufficient to warrant sua sponte reopening,

the BIA considered it significant that he did not diligently pursue relief in

immigration court. The “exceptional situation” benchmark does not provide a

sufficiently meaningful standard to permit judicial review. Bonilla, 840 F.3d at

586.

Second, he argues that the BIA erred in requiring that his motion to reopen

be filed within ninety days of the change in conviction prompting the request.

However, the BIA only mentioned the ninety day period in concluding Meza-

Diveni’s motion was untimely, not in explaining its refusal to reopen sua sponte.

See 8 U.S.C. § 1229a(c)(7)(C)(i).

Third, he argues that the BIA mischaracterized the record in finding no due

diligence. However, the BIA only considered diligence as part of its “exceptional

2 situation” finding, and this court lacks jurisdiction to review that determination.

Bonilla, 840 F.3d at 586.

Fourth, he argues that the BIA departed from its past practice of granting sua

sponte reopening based on a vacated criminal conviction. Even assuming BIA

deviation from a pattern or practice could create jurisdiction, Meza-Diveni has not

demonstrated a “clearly defined” pattern of BIA dispositions tailored to his

circumstances. Menendez-Gonzalez v. Barr, No. 15-73869, 2019 WL 3022376 (9th

Cir. July 11, 2019).

Fifth, he argues that the BIA is required to grant reopening where the basis

for removability is nullified. Meza-Diveni has not established that the BIA’s

refusal to do so is legal or constitutional error. Id.

Sixth, he argues that the BIA erred in finding he was not prima facie eligible

for cancellation of removal. The BIA did not rely on his ineligibility for

cancellation of removal in denying his motion to reopen. Meza-Diveni therefore

has not established any legal or constitutional error creating jurisdiction.

PETITION DENIED.