Antonio Ramirez Ramirez v. MERRICK B. GARLAND, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ANTONIO RAMIREZ RAMIREZ,
Petitioner,
v.
MERRICK B. GARLAND, Attorney
General,
Respondent.
No. 22-920
Agency No.
A087-046-957
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted March 29, 2024**
Pasadena, California
Before: RAWLINSON, LEE, and BRESS, Circuit Judges.
Antonio Ramirez Ramirez (Ramirez), a native and citizen of Mexico, petitions
for review of a Board of Immigration Appeals (BIA) decision denying his motion to
reconsider a previous BIA decision denying Ramirez’s untimely motion to reopen
* 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).
FILED
APR 2 2024
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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removal proceedings sua sponte. “[T]his court has jurisdiction to review Board
decisions denying sua sponte reopening for the limited purpose of reviewing the
reasoning behind the decisions for legal or constitutional error.” Bonilla v. Lynch,
840 F.3d 575, 588 (9th Cir. 2016), as amended. If the BIA’s decision is free of legal
or constitutional error, “this court will have no jurisdiction to review the sua sponte
decision . . . .” Id. We dismiss Ramirez’s petition for lack of jurisdiction.
The BIA denied Ramirez’s motion to reopen and subsequent motion to
reconsider because Ramirez failed to show that his case qualified as an exceptional
situation warranting sua sponte reopening under 8 C.F.R. § 1003.2(a). That decision
is discretionary, see Lona v. Barr, 958 F.3d 1225, 1227 (9th Cir. 2020), and does not
reflect any legal or constitutional error that we have jurisdiction to review. As we
have explained, the scope of our ability to review a denial of a motion to sua sponte
reopen immigration proceedings “is limited to those situations where it is obvious
that the agency has denied sua sponte relief not as a matter of discretion, but because
it erroneously believed that the law forbade it from exercising its discretion or that
exercising its discretion would be futile.” Id. at 1234 (citations omitted).
Neither of these circumstances is present here. While Ramirez argues that the
BIA erred in concluding that the vacatur of his convictions did not qualify as an
exceptional situation warranting sua sponte reopening, he identifies no colorable
legal or constitutional error in the BIA’s decision. Ramirez’s further contention that

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the BIA made factual errors concerning his lack of diligence is similarly
unreviewable. The BIA’s consideration of Ramirez’s diligence does not suggest that
the BIA “misconstrue[d] the parameters of its sua sponte authority based on legal or
constitutional error,” such that its decision becomes reviewable. Id. at 1237.
In short, the decision to deny Ramirez’s motions was an exercise of the BIA’s
discretion and did not rely on an incorrect legal conclusion. See Cui v. Garland, 13
F.4th 991, 1001 (9th Cir. 2021) (“[I]n exercising its discretionary authority, the
Court finds that the BIA did not ‘rel[y] on an incorrect legal premise’ in declining
to sua sponte reopen [petitioner’s] case.” (quoting Bonilla, 840 F.3d at 588)). We
lack jurisdiction to review the Board’s decision as a result.
PETITION DISMISSED.

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