The Ninth Circuit has determined that it has jurisdiction to review the denial of a sua sponte motion to reopen by the agency to determine if the denial rested on legal or constitutional error.  In the instant case, the Board of Immigration Appeals denied the motion to reopen based on the erroneous conclusion that the non-citizen would not be eligible for 212(c) waiver even if his proceedings were reopened.  Because he would be eligible for such a waiver, the Ninth Circuit sustained the appeal, and remanded for the Board of Immigration Appeals to determine if sua sponte discretion should be exercised based on the proper legal framework.

The full decision in Bonilla v. Lynch can be found here: