JUAN MORENO V. MERRICK GARLAND

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 30, 2022
• Docket: 18-72537
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS DEC 30 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

JUAN FERNANDO MORENO, AKA Juan No. 18-72537 Moreno, Agency No. A200-246-777 Petitioner,

v. MEMORANDUM*

MERRICK B. GARLAND, Attorney General,

Respondent.

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

Submitted June 14, 2022** Pasadena, California

Before: RAWLINSON and CHRISTEN, Circuit Judges, and SIMON,*** District Judge.

Juan Fernando Moreno (Moreno), a native and citizen of Mexico, petitions

* 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 Michael H. Simon, United States District Judge for the District of Oregon, sitting by designation. for review of a Board of Immigration Appeals (BIA) decision denying his

application for cancellation of removal. He makes two arguments. First, Moreno

contends that the BIA abused its discretion by affirming the decision of the

Immigration Judge (IJ) denying Moreno’s request for an additional continuance

after several had been granted already. Second, Moreno challenges the denial of

his motion to remand sua sponte. To the extent we have jurisdiction, it is under 8

U.S.C. § 1252. We DENY in part and DISMISS in part.

1. We review an agency’s denial of a motion for continuance for abuse

of discretion. Pleitez-Lopez v. Barr, 935 F.3d 716, 719 (9th Cir. 2019).

The BIA did not abuse its discretion by affirming the IJ’s denial of Moreno’s

motion for an additional continuance. In December 2011, the Department of

Homeland Security (DHS) commenced removal proceedings against Moreno.

Between 2012 and 2016, Moreno received several continuances, including three

continuances to permit him to retain counsel, two continuances for attorney

preparation (one of which was caused by Moreno’s failure to respond to his

counsel for more than eight months), and one continuance to wait for his United

States citizen child to be born. At his August 2016 merits hearing, Moreno asked

for a further continuance to begin seeking expungement of a 2012 conviction, after

which he hoped to request a favorable exercise of the DHS’s prosecutorial

discretion. Counsel for DHS responded that based on her review, DHS would

2 likely not grant Moreno prosecutorial discretion even if he successfully expunged

his conviction. The IJ denied Moreno’s request for lack of good cause. At the

conclusion of the hearing, Moreno reiterated his request for a continuance, adding

that he needed time to divorce his wife and marry his girlfriend so that her two

United States citizen daughters would become his stepdaughters and additional

qualifying relatives. The IJ denied that request, finding no good cause and noting

that the case had been on the docket since 2012.

The BIA did not abuse its discretion by agreeing that Moreno failed to show

good cause. The possibility that Moreno might expunge his conviction and then

obtain prosecutorial discretion from DHS is not good cause. See Singh v. Holder,

638 F.3d 1264, 1274 (9th Cir. 2011) (“[T]he IJ was not required to grant a

continuance based on . . . speculation[].”). Also, Moreno had four years to pursue

this relief and at least one year to prepare for his merits hearing.

Moreno’s reliance on Malilia v. Holder, 632 F.3d 598 (9th Cir. 2011), is

misplaced. Unlike the petitioner in Malilia, Moreno moved for additional

continuances and his need for more time was attributable to his own delay, not the

agency’s. Id. at 604. Moreno also contends that the BIA might have been

improperly influenced by the fact that his new qualifying relatives would be

stepchildren, not biological children. Moreno, however, cites no evidence to

support his statement and none appears in the record.

3 2. Under 8 U.S.C. § 1229a(c)(7)(C)(i), a motion to reopen must be filed

within 90 days of the final order of removal. “The formal requirements of the

motion to reopen and those of the motion to remand are for all practical purposes

the same.” Rodriguez v. I.N.S., 841 F.2d 865, 867 (9th Cir. 1987). Thus, motions to

remand must also comply with the 90-day deadline. Ramirez-Alejandre v. Ashcroft,

319 F.3d 365, 382 (9th Cir. 2003).

Even after 90 days have passed, the BIA retains inherent authority to reopen

or remand a case in exceptional circumstances. Bonilla v. Lynch, 840 F.3d 575,

584-85 (9th Cir. 2016). A motion to reopen filed after the 90-day deadline is

known as a “motion to reopen sua sponte.” Id.

We lack jurisdiction, however, to review a denial of a motion to remand sua

sponte for abuse of discretion. Ekimian v. I.N.S., 303 F.3d 1153, 1159 (9th Cir.

2002); Bonilla, 840 F.3d at 586 (citing Ekimian). We retain jurisdiction over such a

denial only to determine whether the agency rendered its decision based on a

misunderstanding of law, a change in the law, or to avoid constitutional error.

Bonilla, 840 F.3d at 588; see also Lona v. Barr, 958 F.3d 1225, 1227 (9th Cir.

2020) (“BIA denials of sua sponte relief premised on legal or constitutional error

remain the one narrow exception to our rule that the agency’s sua sponte authority

is not subject to judicial review.” (quotation marks omitted)). In his petition,

Moreno argues only that the denial of the motion to remand sua sponte was an

4 abuse of discretion. He has not identified any misunderstanding of law, change in

the law, or constitutional error, and we have found none. Accordingly, we do not

have jurisdiction to review the challenged denial of the motion to remand sua

sponte.

PETITION DENIED IN PART AND DISMISSED IN PART.