Edwin Tercero Ramirez v. Jefferson Sessions, III

• Court: Court of Appeals for the Ninth Circuit
• Decided: October 30, 2018
• Docket: 16-70449
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION OCT 30 2018 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

EDWIN ROCAEL TERCERO RAMIREZ, Nos. 16-70449 17-70530 Petitioner, Agency No. A072-109-862 v.

JEFFERSON B. SESSIONS III, Attorney MEMORANDUM* General,

Respondent.

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

Submitted October 19, 2018** San Francisco, California

Before: WALLACE, KLEINFELD, and GRABER, Circuit Judges.

Edwin Rocael Tercero Ramirez, a Guatemalan citizen, petitions for review

the denials of his motions to reopen. We have jurisdiction pursuant to 8 U.S.C. §

1252. We DENY the petitions for review.

* 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). Tercero filed two separate motions in the Board of Immigration Appeals,

requesting that the Board reopen and administratively close his removal

proceedings. Both motions requested reopening based on the Board’s sua sponte

authority. Tercero moved for reopening to pursue an I-601A provisional waiver of

inadmissibility pursuant to 8 C.F.R. § 212.7(e). The Board denied both motions.

We generally review the denials of motions to reopen for abuse of

discretion. But we may review the Board’s denials based on sua sponte authority

only for the limited purpose of determining whether the decisions rested on legal or

constitutional error. Bonilla v. Lynch, 840 F.3d 575, 581 (9th Cir. 2016).

We do not consider the availability of administrative closure or I-601A

provisional waivers.1 If the Board were to reopen sua sponte, Tercero will be able

to pursue other remedies, including cancellation of removal—relief he sought in

the alternative to administrative closure in the first motion to reopen.2 See Fikre v.

FBI, — F.3d —, —, 2018 WL 4495552, at *6 (9th Cir. Sept. 20, 2018) (“When

examining whether a claim has become moot, the question is not whether the

precise relief sought at the time the case was filed is still available. The question is

1 As a result, we do not consider the retroactive application, if any, of In re Castro-Tum, 27 I. & N. Dec. 271 (A.G. 2018). 2 Bonilla, 840 F.3d at 592 (remanding for reconsideration rather than vacating final order of removal for legal or constitutional error under the Board’s sua sponte authority). 2 whether there can be any effective relief.” (internal quotation marks and brackets

omitted)); Chafin v. Chafin, 568 U.S. 165, 172 (2013) (“As long as the parties have

a concrete interest, however small, in the outcome of the litigation, the case is not

moot.” (internal quotation marks omitted)); see also Williams v. INS, 795 F.2d

738, 742 (9th Cir. 1986) (“[A] continuing dispute as to jurisdiction is sufficient to

prevent a finding of mootness.”); Bonilla, 840 F.3d at 581 (describing Board’s sua

sponte authority as sua sponte jurisdiction).

We instead deny the petitions for review on the merits of the appeal. The

Board did not commit legal or constitutional error. When declining to exercise its

sua sponte authority, the Board is not required to provide a detailed explanation of

its decision. See Ekimian v. INS, 303 F.3d 1153, 1157 (9th Cir. 2002) (denying

petition for review where “the order provide[d] virtually no explanation as to why

the [Board] declined to exercise its sua sponte power to reopen in th[e] case”).

Because Tercero had “a fair opportunity to present [his] case[],” the Board did not

deny him due process. See Yeghiazaryan v. Gonzales, 439 F.3d 994, 1000 (9th

Cir. 2006).

For the foregoing reasons, the petitions for review are DENIED.