Hung Tran v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 8, 2024
• Docket: 18-71813
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 8 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

HUNG TRI TRAN, No. 18-71813

Petitioner, Agency No. A071-434-977

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

Respondent.

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

Argued and Submitted January 9, 2024 Pasadena, California

Before: CALLAHAN, CHRISTEN, and BENNETT, Circuit Judges. Concurrence by Judge CHRISTEN.

Hung Tri Tran, a native and citizen of Vietnam, petitions for review of the

Board of Immigration Appeals’ (“BIA” or “Board”) dismissal of his appeal from an

Immigration Judge’s (“IJ”) order denying Tran’s sua sponte motion to reopen. We

presume the parties’ familiarity with the facts and do not discuss them in detail here

except as needed to provide context. We have jurisdiction under 8 U.S.C. §

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. 1252(a)(2)(D), and we deny the petition.

Tran requested that the IJ sua sponte reopen and terminate his immigration

proceedings claiming intervening case law—and specifically United States v.

Descamps, 570 U.S. 254 (2013)—rendered him no longer removable under 8 U.S.C.

§ 1227(a)(2)(A)(ii). The IJ denied Tran’s motion on four independent and

alternative grounds: (1) “the interest in finality in immigration proceedings”; (2)

“[c]hanges in the law subsequent to an order of removal do not invalidate [Tran’s]

prior order”; (3) the “immigration-related effect of Descamps” does not extend to 8

U.S.C. § 1227(a)(2)(A)(ii); and (4) Descamps was not a “fundamental” change in

the law. Tran timely appealed to the Board, which subsequently dismissed his

appeal “for the reasons articulated in the Immigration Judge’s decision,” agreeing

with the IJ “that the facts presented in this case do not warrant sua sponte reopening

of the proceedings.”

“Where, as here, the Board incorporates the IJ’s decision into its own without

citing Matter of Burbano, 20 I. & N. Dec. 872 (BIA 1994), this court will review the

IJ’s decision to the extent incorporated.” Medina-Lara v. Holder, 771 F.3d 1106,

1111 (9th Cir. 2014); Rayamajhi v. Whitaker, 912 F.3d 1241, 1243 (9th Cir. 2019).

The decision to sua sponte deny a motion to reopen “is within the discretion

of the Board,” and the Board may deny reopening “even if the party moving has

made out a prima facie case for relief.” 8 C.F.R. § 1003.2(a); Lona v. Barr, 958 F.3d

2 18-71813 1225, 1234 (9th Cir. 2020) (describing this discretion as “unfettered”). Therefore,

while the denial of a motion to reopen “is a final administrative decision subject to

our judicial review,” Singh v. Holder, 771 F.3d 647, 650 (9th Cir. 2014), “this court

has jurisdiction . . . for the limited purpose of reviewing the reasoning behind the

decisions for legal or constitutional error.” Bonilla v. Lynch, 840 F.3d 575, 588 (9th

Cir. 2016); see Lara-Garcia v. Garland, 49 F.4th 1271, 1277 (9th Cir. 2022) (“The

scope of our review under Bonilla is limited to those situations 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 or that

exercising its discretion would be futile.”) (citation omitted). “If, upon exercise of

its jurisdiction, this court concludes that the Board relied on an incorrect legal

premise, it should remand to the BIA so it may exercise its authority against the

correct legal background.” Bonilla, 840 F.3d at 588.

1. As an initial matter, we deny Tran’s petition because the IJ and Board

(collectively, “agency”) denied Tran’s motion “as a matter of discretion.” Lara-

Garcia, 49 F.4th at 1277 (citation omitted). The IJ explained that Tran “knowingly

and intelligently waived his right to appeal” the 1994 deportation order and “never

appealed” the denial of his first motion to reopen. In view of this, the IJ found “the

interest in finality in immigration proceedings takes precedence in this case, and it

is not one in which the Court should exercise its sua sponte authority to reopen

3 18-71813 proceedings.” By way of further example, in dismissing Tran’s appeal, the Board

cited both Matter of G-D-, 22 I. & N. Dec. 1132 (BIA 1999) and Matter of J-J-, 21

I. & N. Dec. 976 (BIA 1997), which establish that the agency should only sua sponte

reopen a case in “exceptional situations.” Matter of J-J-, 21 I. & N. Dec. at 984. In

sum, the agency’s decision “evinces no misunderstanding about its unfettered

discretion under 8 C.F.R. § 1003.2(a).” Lona, 958 F.3d at 1234. Tran’s petition is

denied for this reason alone.

2. Even if the Board did not incorporate the IJ’s finding regarding “the

interest in finality in immigration proceedings,” the Board still held that “the facts

presented in this case do not warrant sua sponte reopening in proceedings,” and that

Descamps was not a “fundamental” change in law. The Board’s determination that

Descamps was not a “fundamental” change in law is an “expression of discretion”

against which we have no applicable standard to review. Lona, 958 F.3d at 1235

(quoting Barajas-Salinas v. Holder, 760 F.3d 905, 908 (8th Cir. 2014)). Whether a

change in law is “fundamental” (or not) is not a “legal premise” for which this court

has jurisdiction to review, Bonilla, 853 F.3d at 585, and is part and parcel of its

“unfettered” discretion. Lona, 958 F.3d at 1234. Moreover, the Board is never

required to reopen proceedings, even if there was a “fundamental” change in the law.

Lona, 958 F.3d at 1235-36.

PETITION DENIED.

4 18-71813 FILED MAR 8 2024 CHRISTEN, Circuit Judge, concurring: MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

I concur in the panel’s result and with its reasoning through numbered

paragraph 1, but do not join the analysis set forth in numbered paragraph 2.

5 18-71813