The Ninth Circuit has upheld the Board of Immigration Appeals’ denial of a motion to reopen for a petitioner whose drug conviction was vacated by the criminal court.
“Menendez-Gonzalez cites to ten unpublished BIA decisions over a period of about eight years, a period of time when the BIA completed more than 30,000 cases each year. He argues that those citations demonstrate a ‘pattern’ of BIA orders granting sua sponte reopening following vacatur of a conviction, and that this pattern established a sufficiently ‘settled course’ that constrained the BIA’s discretion and obligated it to exercise its sua sponte authority to reopen his case. We do not agree. Among the thousands of decisions made by the BIA over many years, it is not at all remarkable or persuasive to be able to find a few that seem to have elements in common with a current litigant’s case. That is especially true with unpublished dispositions, as they generally include only brief descriptions, if any, of facts that may influence the exercise of discretion. Citation of a few unpublished decisions falls far short of establishing that the BIA has effectively adopted a rule that vacatur of an underlying conviction necessarily requires it to grant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, effectively eliminating the discretion that the BIA would otherwise have to examine the specifics of an individual petitioner’s case.”
“There have been other decisions over the years in which the BIA declined to exercise its sua sponte authority to reopen after determining that vacatur of the underlying conviction did not constitute an “exceptional circumstance” sufficient to warrant such an extraordinary remedy. Even if we concluded that there was a sufficiently established pattern of granting sua sponte reopening where the underlying conviction had been vacated—and we have not—Menendez-Gonzalez has not established any ‘incorrect legal premise’ in the BIA’s decision not to reopen sua sponte where the petitioner waited years before moving to reopen.”
The full text of Menendez-Gonzalez v. Barr can be found here:
http://cdn.ca9.uscourts.gov/datastore/opinions/2019/07/11/15-73869.pdf