Thoth Sun v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: June 16, 2021
• Docket: 19-71507
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUN 16 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

THOTH SUN, No. 19-71507

Petitioner, Agency No. A023-778-717

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

Respondent.

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

Submitted June 11, 2021** Pasadena, California

Before: MURGUIA, BADE, and LEE, Circuit Judges.

Thoth Sun, a native and citizen of Cambodia, petitions for review of the Board

of Immigration Appeals’s (“BIA”) dismissal of Sun’s appeal of an immigration

judge’s denial of sua sponte reopening. We dismiss the petition in part and deny the

* 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). petition in part.1

In general, we lack jurisdiction to review the denial of sua sponte reopening,

which is a matter of agency discretion. See Ekimian v. INS, 303 F.3d 1153, 1159

(9th Cir. 2002). However, we may review such denials “for the limited purpose of

determining whether the Board based its decision on legal or constitutional error.”

Bonilla v. Lynch, 840 F.3d 575, 581 (9th Cir. 2016). In other words, “our review of

the BIA’s unfettered discretion to reconsider or reopen on its own motion is limited

to instances where the agency misconstrues the parameters of its sua sponte authority

based on legal or constitutional error and, as a consequence, does not truly exercise

its discretion.” Lona v. Barr, 958 F.3d 1225, 1237 (9th Cir. 2020).

Sun sought reopening more than a decade after the conclusion of his initial

removal proceedings based on a change in the applicable law. He contends that the

BIA erred by applying a diligence requirement in denying his request for sua sponte

reopening. Here, the BIA referred to Sun’s diligence in pursuing reopening, among

other factors, in determining that there was no “exceptional situation . . . which

would warrant [the] exercise of sua sponte reopening.” Because this decision

“evince[d] no misunderstanding” about the BIA’s discretion, we lack jurisdiction to

review it. See id. at 1234–35.

1 Because the parties are familiar with the facts, we do not recite them here except as necessary to resolve the issues in the petition for review.

2 In addition, Sun contends that the IJ was required to reopen his removal

proceedings because execution of his 2004 removal order would constitute a “gross

miscarriage of justice.” However, the cases Sun relies on address reinstated removal

orders, not motions to reopen. See, e.g., Vega-Anguiano v. Barr, 982 F.3d 542, 544

(9th Cir. 2019) (as amended). We decline Sun’s invitation to extend these holdings

beyond the reinstatement context, particularly given our case law establishing that

the agency is not required to grant sua sponte reopening based on a subsequent

change in law that makes clear a noncitizen’s criminal conviction is no longer a

removable offense. See, e.g., Lona, 958 F.3d at 1228–30. Therefore, we deny the

petition for review as it relates to the gross-miscarriage-of-justice argument.2

PETITION DISMISSED IN PART AND DENIED IN PART.

2 We also deny Sun’s pending motion for a stay of removal as moot. See Doc. 5.