Vega-Diaz v. Bondi

• Court: Court of Appeals for the Ninth Circuit
• Decided: October 3, 2025
• Docket: 23-426
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS OCT 3 2025 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

IVAN VEGA-DIAZ, No. 23-426 Agency No. Petitioner, A205-602-033 v. MEMORANDUM* PAMELA BONDI, Attorney General,

Respondent.

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

Submitted September 18, 2025** Phoenix, Arizona

Before: COLLINS, MENDOZA, and DESAI, Circuit Judges.

Petitioner Ivan Vega-Diaz petitions for review of a decision by the Board of

Immigration Appeals (“BIA”) denying his motion to reopen his immigration

proceedings to allow him to apply for cancellation of removal. We have

jurisdiction under 8 U.S.C. § 1252 and review for abuse of discretion. Singh v.

* 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). Garland, 124 F.4th 690, 697 (9th Cir. 2024).

1. Vega-Diaz argues that the BIA abused its discretion in declining to

use its authority to sua sponte reopen proceedings to allow him to pursue a

nonimmigrant visa. We lack jurisdiction over the BIA’s decision not to invoke its

sua sponte authority to reopen, except for the “limited purpose of determining

whether the [BIA] based its decision on legal or constitutional error.” Bonilla v.

Lynch, 840 F.3d 575, 581 (9th Cir. 2016). Aside from the general argument that

the BIA should have exercised its discretion and used its sua sponte reopening

authority, Vega-Diaz does not explain how the BIA committed legal or

constitutional error. We thus find no basis to conclude the BIA erred by declining

to reopen pursuant to its sua sponte authority.

2. In his removal proceedings, Vega-Diaz filed an application for

cancellation of removal but withdrew it at the direction of his then-counsel, which

he contends was ineffective assistance. He submitted a statement in support of his

motion to reopen which he contends the BIA failed to “accept as true,” as it must

in considering a motion to reopen. Agonafer v. Sessions, 859 F.3d 1198, 1203 (9th

Cir. 2017).

To succeed on his claim of ineffective assistance of counsel, Vega-Diaz

must demonstrate that “the outcome of the proceeding may have been affected by”

his counsel’s ineffective assistance. Hernandez-Ortiz v. Garland, 32 F.4th 794,

2 23-426 801 (9th Cir. 2022) (quoting Grigoryan v. Barr, 959 F.3d 1233, 1240 (9th Cir.

2020)). In denying his motion to reopen, the BIA held that, “[e]ven assuming

inadequate performance by the former attorney, [Vega-Diaz] has not shown

prejudice” and that he “has not shown plausible grounds for relief because he does

not address in his motion his criminal history, good moral character, and whether

he merits relief in the exercise of his discretion, which are further requirements for

cancellation of removal.”

Indeed, in his motion to reopen and in his opening brief before us, Vega-

Diaz failed to address these statutory requirements for cancellation of removal.

See 8 U.S.C. § 1229b(b)(1). Because Vega-Diaz failed to offer any evidence or

argument that he may be eligible for cancellation of removal, the BIA did not

abuse its discretion by concluding he was not prejudiced by his counsel’s advice to

withdraw his application.

3. To be eligible for cancellation of removal, Vega-Diaz must also

demonstrate that his removal “would result in exceptional and extremely unusual

hardship to a qualifying relative.” Gonzalez-Juarez v. Bondi, 137 F.4th 996, 999

(9th Cir. 2025) (quoting 8 U.S.C. § 1229b(b)(1)(D)). He argues that the BIA failed

to consider evidence relating to new hardships that supports his claim for

cancellation of removal. Specifically, he asserts that the BIA did not consider

evidence of his child’s heart condition and his stepchild’s hyperactivity. But the

3 23-426 BIA acknowledged Vega-Diaz’s new evidence and concluded that it was not

sufficiently “exceptional and extremely unusual” to establish prima facie eligibility

for cancellation of removal. This finding is supported by the record and thus does

not constitute an abuse of discretion.

4. Vega-Diaz also argues that the BIA erred by relying on his hearing

testimony through an unsworn interpreter. The BIA addressed this issue in Vega-

Diaz’s earlier appeal from the IJ’s initial order denying relief. But Vega-Diaz did

not petition this court for review of that order, nor did he re-raise the issue as a

ground for granting the instant motion to reopen before the BIA. He thus failed to

timely raise and exhaust this challenge. See Stone v. INS, 514 U.S. 386, 405–06

(1995) (stating that separate petitions for review must be filed from the underlying

removal order and from an ensuing motion to reconsider); see also Riley v. Bondi,

145 S. Ct. 2190, 2203 (2025) (clarifying that Stone’s rule is a claim-processing

rule, not a jurisdictional rule).

PETITION DENIED.

4 23-426