Valeriya Nedeva-Alaniz v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: January 2, 2025
• Docket: 19-71897
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JAN 2 2025 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

No. 19-71897 VALERIYA GEORGIEVA NEDEVA- ALANIZ, Agency No. A089-347-529 Petitioner, MEMORANDUM* v.

MERRICK B. GARLAND, Attorney General

Respondent.

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

Submitted December 4, 2024** San Francisco, California

Before: COLLINS, VANDYKE and MENDOZA, Circuit Judges.

Valeriya Georgieva Nedeva-Alaniz, a citizen of Bulgaria, petitions for

review of a decision by the Board of Immigration Appeals (“BIA” or the “Board”)

denying her motion to reopen. Petitioner requests that the Court remand the case

* 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). to the BIA to clarify its decision not to exercise sua sponte authority to reopen

Petitioner’s removal proceedings. We dismiss the petition for lack of jurisdiction.

For a person to obtain sua sponte relief under 8 C.F.R. § 1003.2(a), “the

Board must be persuaded that the respondent’s situation is truly exceptional.”

Bonilla v. Lynch, 840 F.3d 575, 585 (9th Cir. 2016) (internal quotation marks and

citation omitted). We may review BIA “decisions denying sua sponte reopening

for the limited purpose of reviewing the reasoning behind the decisions for legal or

constitutional error.” Id. at 588. “If, upon exercise of its jurisdiction, this court

concludes that the Board relied on an incorrect legal premise, it should remand to

the BIA so it may exercise its authority against the correct legal background.” Id.

(internal quotation marks and citation omitted).

1. As an initial matter, Respondent argues that Petitioner has waived her

argument that Pereira v. Sessions, 585 U.S. 198 (2018), resulted in a fundamental

change of law. Petitioner acknowledges that certain arguments—namely, her

arguments related to deficiencies in the notice to appear (“NTA”) and its impact on

the in absentia removal order—are now foreclosed. Despite this acknowledgment,

Petitioner separately argues that she is eligible to seek cancellation of removal

because, under Pereira, the NTA did not trigger the stop-time rule. Petitioner has

not waived that argument.

2 2. Petitioner contends that the case should be remanded because it is

unclear whether the BIA exercised its discretion in denying the motion to reopen

the proceedings or whether it concluded that Petitioner failed to establish prima

facie eligibility for cancellation of removal. If the BIA’s decision was an exercise

of discretion, the Court lacks jurisdiction to review. Bonilla, 840 F.3d at 585–86.

While the BIA’s decision regarding its sua sponte authority is sparse, the BIA

concluded that it did not find “sua sponte reconsideration is warranted based on a

fundamental change of law in these circumstances.” A finding of a “fundamental

change in the law” is “an expression of discretion,” not a “legal premise.” Lona v.

Barr, 958 F.3d 1225, 1235 (9th Cir. 2020) (quoting Barajas-Salinas v. Holder, 760

F.3d 905, 908 (8th Cir. 2014)). Moreover, even if there was a fundamental change

in the law, “it does not follow that the BIA committed legal or constitutional error

in denying [Petitioner] relief.” Id. at 1234. “[T]he Board is not required . . . to

reopen proceedings sua sponte in exceptional situations.” Id. at 1234–35 (quoting

Bonilla, 840 F.3d at 585). Because the BIA decided, in its discretion, not to

exercise sua sponte authority to reopen Petitioner’s removal proceedings, we do

not have jurisdiction to review the BIA’s decision.

The petition for review is DISMISSED.