German Jaimes Solano v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 13, 2021
• Docket: 17-73040
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION MAY 13 2021 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

GERMAN JAIMES SOLANO, No. 17-73040

Petitioner, Agency No. A077-358-523

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

Respondent.

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

Submitted May 11, 2021** Pasadena, California

Before: BYBEE and BRESS, Circuit Judges, and CARDONE,*** District Judge.

Petitioner German Jaimes Solano (Solano), a native and citizen of Mexico,

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

* 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 Kathleen Cardone, United States District Judge for the Western District of Texas, sitting by designation. affirming the Immigration Judge (IJ)’s denial of his untimely motion to reopen.

Our jurisdiction arises under 8 U.S.C. § 1252. The BIA declined to reopen

pursuant to its sua sponte authority. We generally lack jurisdiction to review the

BIA’s decision not to reopen proceedings sua sponte under 8 C.F.R. § 1003.2(a).

See Singh v. Holder, 771 F.3d 647, 650 (9th Cir. 2014). Thus, we review only for

“legal or constitutional error.” Bonilla v. Lynch, 840 F.3d 575, 588 (9th Cir. 2016).

Because the parties are familiar with the facts, we will not recite them here. We

dismiss the petition.

1. We lack jurisdiction to review the BIA’s decision. Solano asserts that

the BIA rested its decision on a legal error because it wrongly determined that the

Supreme Court’s decision in Moncrieffe v. Holder, 569 U.S. 184 (2013)––and by

extension, our decision in United States v. Aguilera-Rios, 769 F.3d 626 (9th Cir.

2014)––does not represent a fundamental change in the law and therefore does not

constitute an exceptional circumstance warranting sua sponte reopening. But we

recently made clear that the BIA “is not required . . . to reopen proceedings sua

sponte in exceptional situations, even those involving a fundamental change in the

law.” Lona v. Barr, 958 F.3d 1225, 1234–35 (9th Cir. 2020) (cleaned up). Thus,

2 the BIA was under no obligation to exercise its sua sponte authority to reopen even

if Moncrieffe constitutes a fundamental change.1

2. Because Solano failed to raise the issue before the BIA, we also lack

jurisdiction to address Solano’s claim that, following Pereira v. Sessions, 138 S.

Ct. 2105 (2018), he is eligible for cancellation of removal. 8 U.S.C. § 1252(d)(1).

PETITION DISMISSED.

1 Solano also argues that the BIA erred in finding that he had not filed a motion to reopen directly with the BIA, rendering 8 C.F.R. § 1003.2(g)(3)’s provisions on unopposed motions inapplicable. But even if the BIA erred in this regard, the BIA had no obligation to grant Solano’s motion simply because it was unopposed. See Limsco v. INS, 951 F.2d 210, 213 (9th Cir. 1991). 3