Padilla Ochoa v. Bondi

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 22, 2025
• Docket: 24-1005
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 22 2025 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

EDWIN ALEXANDER PADILLA No. 24-1005 OCHOA; ERIKA FAVIOLA BERMUDEZ Agency Nos. CRUZ; KENDALL MAYBETH PADILLA A220-489-947 BERMUDEZ; KRISTEN ZARIAH A220-489-948 PADILLA BERMUDEZ, A220-489-949 A220-489-950 Petitioners,

v. MEMORANDUM*

PAMELA BONDI, Attorney General,

Respondent.

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

Submitted April 7, 2025** Pasadena, California

Before: CALLAHAN, DESAI, and DE ALBA, Circuit Judges.

Edwin Padilla Ochoa, his wife, and two daughters (collectively,

“Petitioners”) appeal the Board of Immigration Appeals’ (“Board”) order denying

* 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).

1 their motion to reopen and motion to reconsider. We have jurisdiction pursuant to

8 U.S.C. § 1252(a)(2)(D), and we dismiss the petition in part and deny the petition

in part.

1. Petitioners argue that the Board erred in denying their request

for sua sponte reopening based on changed country conditions because a Human

Rights Report shows that violence in Honduras has become “so intolerable” that

they will be persecuted if forced to return. However, Petitioners point to no “legal

or constitutional error” made by the Board, Lona v. Barr, 958 F.3d 1225, 1229 (9th

Cir. 2020), and critically, the Board explicitly stated that there was no “exceptional

situation” in Petitioners’ case warranting reopening. The Board’s decision thus

evinces that it understood, and applied, its “unfettered discretion” to sua sponte

deny Petitioners’ motion. Id. at 1233; 8 C.F.R. § 1003.2(a) (granting the Board

“discretion to deny a motion to reopen even if the moving party has made out a

prima facie case for relief”). Accordingly, there is “nothing left for us to review”

because “our review [] 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 discretion, or that

exercising its discretion would be futile.” Lona, 958 F.3d at 1234–35 (internal

citations omitted).

2. Petitioners also argue that the Board erred in holding there was no due

2 24-1005 process violation when it summarily affirmed an Immigration Judge’s (“IJ”)

removal order.1 According to Petitioners, the Board’s summary affirmance

violated due process because there was “[n]o reasoning,” “no applicable law,” and

“no well-thought out and organized opinion” for them to challenge. We review

Petitioners’ due process challenge de novo because it requires a “purely legal

determination[].” Rubalcaba v. Garland, 998 F.3d 1031, 1035 (9th Cir. 2021);

Zetino v. Holder, 622 F.3d 1007, 1011 (9th Cir. 2010).

Petitioners’ claim is foreclosed by Falcon Carriche v. Ashcroft, 350 F.3d

845 (9th Cir. 2023). There, we held that the Board does not violate due process

when it “affirm[s] the IJ’s decision without issuing an opinion” because the IJ’s

decision “becomes the final agency action” subject to judicial review. Id. at 851;

see 8 C.F.R. § 1003.1(e)(4)(i)–(ii). We further noted that the petitioners in that

case “received a full hearing before the IJ, a detailed and reasoned opinion from

the IJ, the opportunity to present their arguments to the [Board], and a decision

from a member of the [Board].” Falcon Carriche, 350 F.3d at 850. Similarly

1 The Board construed Petitioners’ due process argument as requesting sua sponte relief under 8 C.F.R. § 1003.2(a) and as applying to both the motion to reopen and to reconsider, but a closer look at Petitioners’ motion shows that Petitioners made no mention of sua sponte relief when raising their due process argument. Moreover, Petitioners’ due process claim can only be raised in a motion to reconsider, which seeks to correct alleged errors of law in the agency’s removal order. See 8 C.F..R. § 1003.2(b)(1). Thus, the more natural reading of Petitioners’ due process challenge is a request for the Board to reconsider its prior decision.

3 24-1005 here, Petitioners received the full panoply of procedural safeguards afforded non-

citizens in removal proceedings, and had the right to appeal the IJ’s “detailed and

reasoned opinion” to this court. Id.

Finally, Petitioners’ reliance on Nolasco-Amaya v. Garland, 14 F.4th 1007

(9th Cir. 2021), is misplaced. Nolasco-Amaya addressed the Board’s erroneous

summary dismissal of an appeal, id. at 1015, which prevented the petitioner from

having a “fair opportunity” to present her case to the Board. See Garcia-Cortez v.

Ashcroft, 366 F.3d 749, 753 (9th Cir. 2004) (internal quotations omitted). Here,

Petitioners had a “fair opportunity” to present their case to the Board.2

PETITION DISMISSED IN PART AND DENIED IN PART.

2 Petitioners’ argument is also foreclosed by the plain text of the regulation governing motions to reconsider, which provides that “[a] motion to reconsider based solely on an argument that the case should not have been affirmed without opinion by a single Board Member, or by a three–Member panel, is barred.” 8 C.F.R. § 1003.2(b)(3).

4 24-1005