Nunez-Orejuela v. Barr


FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit FOR THE TENTH CIRCUIT January 11, 2021 _________________________________ Christopher M. Wolpert Clerk of Court BRUNO NUNEZ-OREJUELA, Petitioner, v. No. 20-9512 (Petition for Review) JEFFREY ROSEN, Acting United States Attorney General, * Respondent. _________________________________ ORDER AND JUDGMENT ** _________________________________ Before HARTZ, KELLY, and EID, Circuit Judges. _________________________________ Bruno Nunez-Orejuela, a native and citizen of Colombia, petitions for review of a decision by the Board of Immigration Appeals (BIA) declining to reopen his immigration proceeding sua sponte. Because we lack jurisdiction to review the BIA’s discretionary decision that Mr. Nunez failed to show an exceptional situation, * On December 24, 2020, Jeffrey Rosen became Acting Attorney General of the United States. Consequently, his name has been substituted for William P. Barr as Respondent, per Fed. R. App. P. 43(c)(2). ** After examining the briefs and appellate record, this panel has determined unanimously to honor the parties’ request for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. which decision alone supports the BIA’s denial of reopening, we dismiss the petition for review for lack of jurisdiction in part and deny the remainder as moot. BACKGROUND Mr. Nunez was deported after pleading guilty to a drug offense in Utah. He later illegally returned to the United States, obtained an approved visa petition through his marriage to a United States citizen, and convinced the Utah courts to vacate his drug conviction. He therefore sought to reopen his prior immigration proceeding so that he could adjust his status. The immigration judge denied his motion to reopen and to rescind his earlier deportation order, and the BIA dismissed his appeal. The BIA then denied his motion for reconsideration. Mr. Nunez did not seek review of those decisions. Instead, he moved the BIA to exercise its sua sponte authority to reopen his proceeding. The motion to reopen sua sponte stated that, after the BIA’s dismissal of Mr. Nunez’s appeal, his wife was granted legal guardianship and custody of her grandchildren, one of whom suffers from psychological issues. Mr. Nunez argued that the special needs of this grandchild, combined with other challenges in the family’s lives, constituted exceptional hardship that made sua sponte reopening appropriate. The BIA, however, held that the motion “does not demonstrate an exceptional situation that would warrant the exercise of our discretion to reopen 2 proceedings under our sua sponte authority.” Admin. R., Vol. 1 at 3. It therefore denied relief. 1 Mr. Nunez petitions for review of that decision. DISCUSSION “The [BIA] may at any time reopen or reconsider on its own motion any case in which it has rendered ...

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