929 F.3d 1113
9th Cir.2019Background
- Menendez-Gonzalez, a Peruvian national, was convicted in California in 1990 of cocaine possession; he was deported in 1994 and unlawfully re-entered the U.S.
- In 2009 the state court vacated the 1990 conviction under Cal. Penal Code §1016.5 because of a missing preliminary hearing transcript and possible improper plea advisement.
- Menendez-Gonzalez moved to reopen immigration proceedings based on the vacatur, arguing it made him eligible for adjustment of status and suspension of deportation.
- The IJ denied the motion under the then-applicable ‘‘departure bar’’; on appeal the BIA dismissed. On remand after Reyes-Torres, the BIA rejected reopening as time-barred and declined to exercise sua sponte reopening because vacatur did not constitute an “exceptional circumstance.”
- Menendez-Gonzalez sought review contending (1) the BIA irrationally departed from a settled practice of reopening when an underlying conviction is vacated, and (2) the BIA improperly engaged in factfinding instead of remanding to the IJ.
- The Ninth Circuit applied its narrow Bonilla exception (review limited to legal or constitutional error in the BIA’s reasoning) and denied the petition, finding no legal or constitutional error.
Issues
| Issue | Plaintiff's Argument (Menendez-Gonzalez) | Defendant's Argument (Barr/Government) | Held |
|---|---|---|---|
| Whether the court has jurisdiction to review BIA denial of sua sponte reopening based on vacatur | Bonilla exception applies because BIA departed from settled practice and thus may have committed legal error | Generally nonreviewable discretionary decision; no legal error shown | No jurisdiction under Bonilla because Menendez-Gonzalez did not show legal or constitutional error |
| Whether vacatur of underlying conviction creates a settled BIA practice constraining discretion | Vacatur routinely produced sua sponte reopening in BIA practice; BIA irrationally departed here | Few unpublished decisions do not create a clearly defined, binding policy; discretion remains unfettered | Not a settled course; plaintiff failed to show a clear, constraining pattern |
| Whether the BIA erred by engaging in impermissible factfinding instead of remanding to the IJ | BIA made factual findings about equities and whether vacatur was exceptional and should have remanded for IJ factfinding | No disputed factual issues requiring remand; legal significance of vacatur and exceptional-circumstance determination are discretionary/legal questions | No improper factfinding; no remand required because relevant facts were not disputed |
| Whether the BIA was required to remand to let the IJ exercise or opine on discretion | BIA should have remanded for IJ view on exercise of sua sponte discretion | BIA may review law and discretion de novo and decline sua sponte relief without remand | BIA did not err; it may exercise/decline discretion in the first instance absent new factfinding |
Key Cases Cited
- Ekimian v. I.N.S., 303 F.3d 1153 (9th Cir. 2002) (BIA denial of sua sponte reopening generally not reviewable)
- Bonilla v. Lynch, 840 F.3d 575 (9th Cir. 2016) (narrow jurisdictional exception to review BIA sua sponte denials for legal or constitutional error in reasoning)
- Reyes-Torres v. Holder, 645 F.3d 1073 (9th Cir. 2011) (departure bar does not preclude a removed alien from seeking reopening)
- Singh v. Holder, 771 F.3d 647 (9th Cir. 2014) (absence of a judicially manageable standard limits review of BIA sua sponte denials)
- I.N.S. v. Yueh-Shaio Yang, 519 U.S. 26 (1996) (irrational departure from an announced policy or settled course of adjudication can be arbitrary and reviewable)