Fernando Menendez-Gonzalez v. William Barr

FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT FERNANDO MENENDEZ-GONZALEZ, No. 15-73869 AKA Fernando Menedez, Petitioner, Agency No. A072-062-253 v. WILLIAM P. BARR, Attorney OPINION General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Argued and Submitted January 14, 2019 San Francisco, California Filed July 11, 2019 Before: J. Clifford Wallace, Richard R. Clifton, and Michelle T. Friedland, Circuit Judges. Opinion by Judge Clifton 2 MENENDEZ-GONZALEZ V. BARR SUMMARY* Immigration Denying Fernando Menendez-Gonzalez’s petition for review of a decision of the Board of Immigration Appeals denying sua sponte reopening, the panel explained that it had jurisdiction for the limited purpose of identifying legal or constitutional error, but concluded that Menendez-Gonzalez had established no such error through his claims that (1) the BIA irrationally departed from a settled practice of granting sua sponte reopening when the conviction underlying a removal order is vacated, and (2) the BIA violated its regulations when it failed to remand the case to the immigration judge for factfinding. Based on a conviction for cocaine possession, Menendez- Gonzalez was deported in 1994, but later re-entered the United States illegally. After his conviction was vacated in 2009 because there was no preliminary hearing transcript to assess whether he was properly advised of the consequences of his plea bargain, Menendez-Gonzalez filed a motion to reopen. As relevant here, the BIA concluded that he had not demonstrated that the vacatur of his conviction was an “exceptional circumstance” warranting sua sponte reopening. The panel explained that denials of motions to reopen sua sponte generally are not reviewable because the decisions are committed to agency discretion, but that the court recognized one narrow exception in Bonilla v. Lynch, 840 F.3d 575 (9th * This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. MENENDEZ-GONZALEZ V. BARR 3 Cir. 2016), which held that the court has jurisdiction to review BIA decisions denying sua sponte reopening for the limited purpose of reviewing the reasoning behind the decisions for legal or constitutional error. Menendez-Gonzalez argued that this court had jurisdiction under Bonilla and should grant his petition because the BIA irrationally departed from a settled practice of granting sua sponte reopening when the conviction underlying a removal order is vacated. The panel rejected that contention, concluding that Menendez-Gonzalez had not demonstrated a pattern that was well established or clearly defined. Noting that Menendez-Gonzalez cited to ten unpublished BIA decisions over a period of about eight years during which the BIA completed more than 30,000 cases each year, the panel explained that citation of a few unpublished decisions fell far short of establishing that the BIA has effectively adopted a rule that vacatur of an underlying conviction necessarily requires it to grant reopening sua sponte. The panel also rejected Menendez-Gonzalez’s contention that the BIA violated the regulation that precludes it from engaging in factfinding when deciding appeals. The panel observed that the only ...

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