Gerardo Almodovar v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: August 12, 2022
• Docket: 18-71441
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS AUG 12 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

GERARDO ALMODOVAR, AKA Gerardo No. 18-71441 Almodovar Payon, Agency No. A093-153-327 Petitioner,

v. MEMORANDUM*

MERRICK B. GARLAND, Attorney General,

Respondent.

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

Submitted August 9, 2022** San Francisco, California

Before: RAWLINSON, BADE, and BRESS, Circuit Judges.

Petitioner Gerardo Almodovar, a native and citizen of Mexico, seeks review

of the Board of Immigration Appeals’ (“BIA”) decision denying his motion to

reconsider a 1999 order removing him from the United States. We have

* 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). jurisdiction to review final orders of removal under 8 U.S.C. § 1252. We lack

jurisdiction to review the BIA’s decision not to sua sponte grant an untimely

motion for reconsideration of an order of removal, except to the extent that the

BIA’s decision was predicated on legal or constitutional error. See Lona v. Barr,

958 F.3d 1225, 1229 (9th Cir. 2020); Ekimian v. INS, 303 F.3d 1153, 1159 (9th

Cir. 2002). Because Almodovar points to no legal or constitutional error in the

BIA’s 2018 decision denying the untimely motion to reconsider, we lack

jurisdiction and dismiss Almodovar’s petition for review.

Almodovar is correct that his conviction for driving under the influence of

alcohol is no longer considered an aggravated felony that would render him

removable pursuant to 8 U.S.C. §§ 1101(a)(43) and 1227(a)(2)(A)(iii). Compare

Leocal v. Ashcroft, 543 U.S. 1, 10 (2004), and Montiel-Barraza v. INS, 275 F.3d

1178, 1180 (9th Cir. 2002) (per curiam), with In re Magallanes-Garcia, 22 I. & N.

Dec. 1, 3–5 (B.I.A. 1998) (holding that such a conviction was an aggravated

felony), and with In re Puente-Salazar, 22 I. & N. Dec. 1006, 1013–14 (B.I.A.

1999) (same).

But, when the BIA was faced with Almodovar’s motion for sua sponte

reconsideration, it had “unfettered discretion” to conclude that reconsideration was

not warranted and we “cannot, by law, disagree” with that conclusion. Lona, 958

F.3d at 1237–38. Our review “is limited to instances where the agency

2 misconstrues the parameters of its sua sponte authority based on legal or

constitutional error and, as a consequence, does not truly exercise its discretion.”

Id. at 1237. Almodovar points to no such legal or constitutional error, and we

detect none.1

PETITION DISMISSED.

1 Almodovar’s motion for a stay of removal during the pendency of the petition for review is denied as moot.