Maria Hernandez-Munoz v. William Barr

• Court: Court of Appeals for the Ninth Circuit
• Decided: January 27, 2020
• Docket: 16-73125
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JAN 27 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

MARIA ELIS HERNANDEZ-MUNOZ, No. 16-73125 AKA Juana Elizabeth Gomez, AKA Juana Elizabeth Gomez Escobar, AKA Maria Agency No. A073-846-238 Munoz, AKA Silvia Reyes,

Petitioner, MEMORANDUM*

v.

WILLIAM P. BARR, Attorney General,

Respondent.

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

Submitted January 21, 2020** Pasadena, California

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

Maria Hernandez-Munoz petitions for review of a Board of Immigration

Appeals’ (BIA) decision dismissing her appeal of an Immigration Judge’s (IJ) denial

of her motion to reopen sua sponte. We deny the petition.

* 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). Hernandez-Munoz was originally ordered removed in 1997, but did not file a

motion to reopen her removal proceedings until over seventeen years later. It is

undisputed that her motion to reopen is untimely under the governing 90-day limit.

See 8 C.F.R. § 1003.23(b) (“A motion to reopen must be filed within 90 days of the

date of entry of a final administrative order of removal, deportation, or exclusion . .

. .”). Accordingly, Hernandez-Munoz sought a discretionary sua sponte reopening

under 8 C.F.R. § 1003.23(b)(1). We lack jurisdiction to review the BIA’s exercise

of discretion in deciding sua sponte motions to reopen, except “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).

Hernandez-Munoz argues that the BIA erred in denying her motion to reopen

because a drug conviction that served as a basis for the original removal order has

now been vacated. The BIA rejected this argument because Hernandez-Munoz was

also adjudged removable as an alien present in the United States without inspection

or parole. 8 U.S.C. § 1182(a)(6)(A)(i). Hernandez-Munoz claims this was error

under Wiedersperg v. INS, 896 F.2d 1179 (9th Cir. 1990), and Cardoso-Tlaseca v.

Gonzales, 460 F.3d 1102 (9th Cir. 2006). That is incorrect. These cases do not

concern sua sponte reopening, and instead involved the “departure bar,” a

jurisdictional prohibition on motions to reopen once an alien leaves the country. See

Cardoso-Tlaseca, 460 F.3d at 1106–07; Wiedersperg, 896 F.2d at 1181–82. In this

2 case, the BIA did not deny reopening based on the departure bar, and the IJ found

that the departure bar did not apply. Nothing in Wiedersperg or Cardoso-Tlaseca

required the BIA to grant sua sponte reopening of Hernandez-Munoz’s removal

proceedings.

Hernandez-Munoz further argues that the BIA made an impermissible

credibility determination in declining to credit her affidavit supporting her motion

to reopen, citing Yang v. Lynch, 822 F.3d 504 (9th Cir. 2016). Unlike in Yang, the

IJ and BIA did not purport to import an earlier adverse credibility determination

from a prior proceeding. See id. at 507. Instead, pursuant to Celis-Castellano v.

Ashcroft, 298 F.3d 888, 892 (9th Cir. 2002), the BIA agreed with the IJ that it need

not credit assertions in an affidavit that were “inherently unbelievable,” including

assertions contained in Hernandez-Munoz’s affidavit that, without explanation,

directly contradicted her representations during the 1997 removal proceedings.

We have carefully reviewed Hernandez-Munoz’s other arguments and find

they do not demonstrate legal or constitutional error. For the foregoing reasons, the

petition for review is DENIED.