Pirir Chitay v. Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: July 20, 2023
• Docket: 21-898
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUL 20 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

PABLO EDWIN PIRIR-CHITAY, No. 21-898

Petitioner, Agency No. A071-583-933

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

Respondent.

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

Submitted July 10, 2023** Pasadena, California

Before: SANCHEZ and MENDOZA, Circuit Judges, and DONATO,*** District Judge.

Petitioner Pablo Edwin Pirir-Chitay, a native and citizen of Guatemala,

petitions for review of a decision by 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 James Donato, United States District Judge for the Northern District of California, sitting by designation. denying a motion to sua sponte reopen his removal proceedings.1 We have

jurisdiction under 8 U.S.C. § 1252(a) to review the BIA’s denial of a motion to

reopen. Perez-Camacho v. Garland, 54 F.4th 597, 603 (9th Cir. 2022). But “we

have no jurisdiction to review the BIA’s sua sponte authority,” Lona v. Barr, 958

F.3d 1225, 1232 (9th Cir. 2020), except “for the limited purpose of reviewing the

reasoning behind the decision[] for legal or constitutional error,” Bonilla v. Lynch,

840 F.3d 575, 588 (9th Cir. 2016). We review due process claims de novo.

Mukulumbutu v. Barr, 977 F.3d 924, 925 (9th Cir. 2020).

The BIA did not err in concluding that Pirir-Chitay was ineligible to seek

cancellation of removal under 8 U.S.C. § 1229b(a). The BIA applied a

precedential decision in Matter of Hernandez-Romero, 28 I. & N. Dec. 374, 378

(B.I.A. 2021) to find that 8 U.S.C. § 1229b(c)(6) barred Pirir-Chitay from seeking

cancellation of removal because he had previously been granted a special rule

cancellation of removal under section 203 of the Nicaraguan Adjustment and

Central American Relief Act (NACARA).2 Pirir-Chitay’s argument that

1 The BIA denied the motion to reopen as untimely and number-barred under 8 U.S.C. § 1229a(c)(7) and 8 C.F.R. § 1003.2(c). Pirir-Chitay did not challenge that decision in his opening brief. Consequently, this claim is waived. See Rizk v. Holder, 629 F.3d 1083, 1091 n.3 (9th Cir. 2011), overruled in part on other grounds by Alam v. Garland, 11 F.4th 1133, 1135 (9th Cir. 2021) (en banc). 2 Pub. L. No. 105-100, 111 Stat. 2196 (1997), amended by Pub. L. 105-139, 111 Stat. 2644 (1997).

2 Hernandez-Romero was wrongly decided is foreclosed by our decision in

Hernandez v. Garland, 38 F.4th 785, 792 (9th Cir. 2022) (finding special rule

cancellation under NACARA § 203 is cancellation of removal under 8 U.S.C.

§ 1229b, and so request for second cancellation is barred by 8 U.S.C.

§ 1229b(c)(6)).3

Pirir-Chitay also argues that the BIA’s reliance on Hernandez-Romero was a

due process violation because that decision was issued while his motion to reopen

was pending and applied “retroactively” without additional opportunity for

briefing. Pirir-Chitay’s argument fails because he does not have a “legitimate

claim of entitlement” to submit additional briefing on his motion for sua sponte

reopening. Ruiz-Diaz v. United States, 703 F.3d 483, 487 (9th Cir. 2012). No

statute or regulation provides Pirir-Chitay with a right to submit additional

briefing. See generally Bonilla, 840 F.3d at 585. And although the BIA cannot

rely on “legal or constitutional error” when declining to reopen proceedings sua

sponte, id. at 588, the agency otherwise has broad discretion to consider (or to

ignore) information that may be relevant to its decision, id. at 585. As discussed

3 The government suggests that Pirir-Chitay did not exhaust his challenge to Hernandez-Romero under 8 U.S.C. § 1252(d). But the exhaustion requirement “is not jurisdictional and does not oblige a noncitizen to seek discretionary review, like reconsideration before the [BIA].” Santos-Zacaria v. Garland, 143 S. Ct. 1103, 1120 (2023). We have jurisdiction over his claim that the denial of sua sponte reopening was based on legal error. Bonilla, 840 F.3d at 588.

3 above, the BIA’s explanation for denying Pirir-Chitay’s motion for sua sponte

reopening contained no legal or constitutional error. The agency’s exercise of its

discretion therefore did not deprive him an “interest protected by the Due Process

Clause.” See Mendez-Garcia v. Lynch, 840 F.3d 655, 669 (9th Cir. 2016) (quoting

Hyuk Joon Lim v. Holder, 710 F.3d 1074, 1076 (9th Cir. 2013)).

Because we find no legal or constitutional error, we lack jurisdiction to

review the BIA’s decision to deny sua sponte relief. Bonilla, 840 F.3d at 588.

PETITION DENIED in part and DISMISSED in part.