Claudio Ragucci v. MERRICK B. GARLAND, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CLAUDIO RAGUCCI,
Petitioner,
v.
MERRICK B. GARLAND, Attorney
General,
Respondent.
Nos. 20-71311
20-73340
Agency No. A077-292-318
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted February 6, 2023**
Pasadena, California
Before: BOGGS,*** IKUTA, and DESAI, Circuit Judges.
Claudio Ragucci, a native and citizen of Italy, petitions for review of two
Board of Immigration Appeals (“BIA”) orders denying a motion to reopen sua
* 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).
*** The Honorable Danny J. Boggs, United States Circuit Judge for the
U.S. Court of Appeals for the Sixth Circuit, sitting by designation.
FILED
FEB 9 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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sponte and a motion to reconsider the order denying the motion to reopen. We
ordinarily lack jurisdiction to review a BIA decision denying sua sponte reopening
or reconsideration. Bonilla v. Lynch, 840 F.3d 575, 585–88 (9th Cir. 2016)
(reopening); Lona v. Barr, 958 F.3d 1225, 1227 (9th Cir. 2020) (reconsideration).
We have jurisdiction only “for the limited purpose of reviewing the reasoning behind
the decisions for legal or constitutional error,” Bonilla, 840 F.3d at 588, and so long
as there is “‘law to apply’ in doing so,” id. at 587. Because Petitioner establishes no
legal or constitutional error in the BIA’s decisions, we lack jurisdiction and dismiss
the petitions for review.
Petitioner argues that the BIA erred in denying his motions because a drug
conviction that served as a basis for his original removal order has now been vacated.
The BIA rejected this argument because Petitioner was also removable for remaining
in the United States with an expired visa. It further reasoned that the other equities
presented by the Petitioner do not constitute exceptional circumstances. Upon
reconsideration, the BIA also rejected Petitioner’s argument that Cardoso-Tlaseca
v. Gonzales, 460 F.3d 1102 (9th Cir. 2006), requires reopening. No legal or
constitutional error underlies either of the BIA’s decisions.
First, Petitioner claims error under Cardoso-Tlaseca because the vacated
conviction was a “key part” of his removal. Cardoso-Tlaseca does not concern sua
sponte reopening, and instead involved the “departure bar,” a jurisdictional

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prohibition on motions to reopen once a noncitizen leaves the country. See 460 F.3d
at 1106–07. In this case, the BIA did not deny reopening based on the departure bar.
Nothing in Cardoso-Tlaseca required the BIA to grant sua sponte reopening of
Petitioner’s removal proceedings.1
Second, the remaining reasoning in each decision relies on the BIA’s
discretion to grant motions to reopen sua sponte in exceptional circumstances. In
each decision, the BIA articulated the “truly exceptional circumstances” standard for
a motion to reopen sua sponte and did not limit its discretion with an erroneous legal
premise. Because the BIA “‘exercise[d] its authority against the correct legal
background[,]’ there is nothing left for us to review. ” Lona, 958 F.3d at 1235 (first
alteration in original) (quoting Bonilla, 840 F.3d at 588).
Finally, Petitioner argues that the BIA violated his due process rights by
declining to reopen his proceedings. We lack jurisdiction to consider this claim
because Petitioner fails to identify any reasoning in the BIA’s decisions to review
for legal or constitutional error, focusing instead on purported errors by the
Immigration Judge in the initial proceeding. See id. at 1234 (explaining that our
1 The BIA also did not commit legal or constitutional error when it found Petitioner’s
“key part” argument was improperly raised for the first time upon reconsideration.
See Mohammed v. Gonzales, 400 F.3d 785, 792 n.8 (9th Cir. 2005) (“A motion to
reconsider does not present new law or facts, but rather challenges determinations
of law and fact made by the BIA.”); Matter of O-S-G-, 24 I. & N. Dec. 56, 58 (BIA
2006) (“A motion to reconsider based on a legal argument that could have been
raised earlier in the proceedings will be denied.”).

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review is “constricted to legal or constitutional error that is apparent on the face of
the BIA’s decision and does not extend to speculating whether the BIA might have
misunderstood some aspect of its discretion”).
For the foregoing reasons, the petitions for review are DISMISSED.

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