Elizabeth Gonzalez-Marciel v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 14, 2022
• Docket: 21-70996
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 14 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

ELIZABETH GONZALEZ-MARCIEL, No. 21-70996

Petitioner, Agency No. A202-010-773

v. MEMORANDUM* MERRICK B. GARLAND, Attorney General,

Respondent.

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

Submitted March 8, 2022** Pasadena, California

Before: FRIEDLAND and KOH, Circuit Judges, and KORMAN,*** District Judge.

* 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 Edward R. Korman, United States District Judge for the Eastern District of New York, sitting by designation. Jonathon Gonzalez-Marciel (“Gonzalez-Marciel”),1 a native and citizen of

Mexico, petitions for review of a decision of the Board of Immigration Appeals

(“BIA”) declining to reopen his case under the BIA’s sua sponte authority. We

“ordinarily lack jurisdiction to review a [BIA] decision denying sua sponte

reopening.” Bonilla v. Lynch, 840 F.3d 575, 585–86 (9th Cir. 2016). We have

jurisdiction to review decisions denying sua sponte reopening only “for the limited

purpose of reviewing the reasoning behind the decisions for legal or constitutional

error,” id. at 588, so long as there is “‘law to apply’ in doing so,” id. at 587.

In the instant case, Gonzalez-Marciel has not shown that there is any law to

apply to any legal or constitutional error in the BIA’s decision denying sua sponte

reopening. The BIA based its decision not upon a legal or constitutional error, but

upon an exercise of its own discretion. The BIA, in declining to reopen Gonzalez-

Marciel’s case, explained that the case was “not the type of case suitable for sua

sponte reopening.” The BIA also cited In re J-J-, 21 I. & N. Dec. 976, 984 (BIA

1997), and In re G-D-, 22 I. & N. Dec. 1132, 1134 (BIA 1999), which are two BIA

decisions establishing that the BIA should only sua sponte reopen a case in truly

exceptional situations. We have held that when the BIA bases its decision not to

sua sponte reopen a case on a finding that the case does not present a “truly

1 Petitioner is a transgender man who identifies himself as Jonathon, and employs masculine pronouns when referring to himself. His preference is reflected in this memorandum disposition.

2 exceptional” situation, we lack jurisdiction to review the BIA’s decision. Bonilla,

840 F.3d at 585–86.

Furthermore, Gonzalez-Marciel’s argument that the BIA’s failure to

examine his evidence constituted legal error is unsubstantiated in the record. See

Fernandez v. Gonzales, 439 F.3d 592, 603 (9th Cir. 2006) (describing presumption

that the BIA reads the entire record when deciding a motion to reopen and

explaining that the burden is on the petitioner to overcome that presumption).

Because we have jurisdiction to review decisions denying sua sponte

reopening only so long as there is “‘law to apply’ in doing so,” Bonilla, 840 F.3d at

587, and because there is no “law to apply” in this case, we lack jurisdiction to

review Gonzalez-Marciel’s petition for review.

PETITION DISMISSED.