Clara Mejia-De Calderon v. William Barr

• Court: Court of Appeals for the Ninth Circuit
• Decided: October 13, 2020
• Docket: 18-71290
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS OCT 13 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

CLARA NOEMY MEJIA-DE No. 18-71290 CALDERON; BRITANY NOEMI CALDERON-MEJIA, Agency Nos. A208-290-316 A208-290-315 Petitioners,

v. MEMORANDUM*

WILLIAM P. BARR, Attorney General,

Respondent.

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

Submitted October 8, 2020** Seattle, Washington

Before: GILMAN,*** CALLAHAN, and CHRISTEN, Circuit Judges.

Clara N. Mejia-de Calderon (Mejia) is a native and citizen of El Salvador.

She petitions for review of the Board of Immigration Appeals’s (BIA’s) decision

* 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 Ronald Lee Gilman, United States Circuit Judge for the U.S. Court of Appeals for the Sixth Circuit, sitting by designation. denying her request that the BIA exercise its sua sponte power to reopen. Our

jurisdiction is governed by 8 U.S.C. § 1252. We review the denial of a motion to

reopen under the abuse-of-discretion standard, and we review questions of law de

novo. Bonilla v. Lynch, 840 F.3d 575, 581 (9th Cir. 2016). Denials of motions to

sua sponte reopen, however, are reviewed only to the extent that the BIA relied on

an incorrect legal or constitutional premise in deciding whether there were

“exceptional circumstances” warranting reopening. Id. at 588.

Mejia does not dispute the untimeliness of her motion to reopen or the BIA’s

determination that no exceptions to the filing deadline applied. Rather, the issue

before us is whether the BIA erred in denying Mejia’s request to exercise its sua

sponte power to reopen. The BIA has held that its power to do so is limited to

“exceptional situations.” In re J-J-, 21 I. & N. Dec. 976, 984 (BIA 1997). In the

present case, the BIA determined that no exceptional circumstances existed to

warrant the exercise of its sua sponte authority.

When reviewing the BIA’s decision not to reopen Mejia’s proceeding sua

sponte, our jurisdiction is limited to “reviewing the reasoning behind the

decision[ ] for legal or constitutional error.” Bonilla, 840 F.3d at 588 (concluding

that the denial of sua sponte reopening was based on “an incorrect legal premise”

that was contrary to the substantive law governing the relief available to the

petitioner); see also Singh v. Holder, 771 F.3d 647, 653 (9th Cir. 2014) (holding

2 that there was jurisdiction over the denial of sua sponte reopening because the

BIA’s decision rested on the erroneous conclusion that it did not have the authority

to reopen). Judicial review is therefore appropriate where it is obvious that the

agency has denied sua sponte relief not as a matter of discretion, but because it

erroneously believed that the law forbade it from exercising its discretion, see

Singh, 771 F.3d at 650, or that exercising its discretion would be futile, see Bonilla,

840 F.3d at 588–89.

Here, the record shows no “incorrect legal premise” regarding the BIA’s

decision to deny sua sponte relief. The BIA clearly applied the “exceptional

circumstances” standard and concluded that such circumstances were not present.

The BIA further observed that Mejia would be ineligible for discretionary

humanitarian asylum. Mejia has not shown this to be an erroneous conclusion as a

matter of law. We therefore have no basis to review the BIA’s decision. See

Bonilla, 840 F.3d at 592 (observing that where the BIA “declines to exercise its

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

legally erroneous premise, its decision will not be reviewable”).

Mejia’s contention that the BIA erred as a matter of law by not clearly

articulating its reasons for declining to reopen sua sponte is similarly unpersuasive.

When declining to exercise its sua sponte authority, the BIA is not required to

provide a detailed explanation. Ekimian v. INS, 303 F.3d 1153, 1157 (9th Cir.

3 2002) (denying a petition for review where “the order provide[d] virtually no

explanation as to why the BIA declined to exercise its sua sponte power to reopen

in th[e] case”).

Mejia’s contention regarding her status as a derivative child similarly fails to

identify any legal or constitutional error in the BIA’s decision. Mejia’s original

application for asylum was based on her fear of gangs in El Salvador and fear of

her ex-husband, who is a gang member. The Immigration Judge denied her

application for relief and that decision was upheld by the BIA. Mejia then filed her

motion to reopen, requesting that the BIA exercise its sua sponte power to reopen

so that she could be a derivative on her mother’s pending asylum application. The

BIA’s denial of the motion was in no way based on a determination that Mejia was

legally barred from being so included. Instead, the BIA declined to exercise its

discretion to reopen where reopening would have had the effect of allowing Mejia

to pursue an avenue of relief totally unrelated to her original asylum application.

That discretionary determination is not reviewable by this court. See Bonilla, 840

F.3d at 586.

PETITION FOR REVIEW DISMISSED.