FILED
NOT FOR PUBLICATION
JUN 07 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ROBERTO ADONAY GALAN, AKA No. 16-70697
Roberto Galan Martinez,
Agency No. A075-637-534
Petitioner,
v. MEMORANDUM*
JEFFERSON B. SESSIONS III, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted May 12, 2017
Pasadena, California
Before: CHRISTEN and WATFORD, Circuit Judges, and SOTO,** District Judge.
An immigration judge determined that Roberto Galan did not establish a
reasonable fear of persecution or torture. Galan filed a timely petition for review
of that decision in our court. We later dismissed the petition after Galan failed to
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable James Alan Soto, United States District Judge for the
District of Arizona, sitting by designation.
Page 2 of 3
file an opening brief; as a result, the merits of the negative reasonable fear
determination are not before us. What is before us is a filing that Galan submitted
to the Board of Immigration Appeals (BIA) alleging that his prior counsel had
provided ineffective assistance in the reasonable fear proceedings. The filing was
technically a notice of appeal from the immigration judge’s order denying
reconsideration of her original decision, but Galan contends that the BIA should
have construed it as a motion to reopen. The BIA dismissed the filing on the
ground that it lacks authority to review negative reasonable fear determinations.
We have jurisdiction under 8 U.S.C. § 1252 to review the BIA’s determination of
its own authority over motions to reopen. Reynoso-Cisneros v. Gonzales, 491 F.3d
1001, 1002 (9th Cir. 2007) (per curiam).
The BIA properly declined to entertain Galan’s filing. Regulations issued
by the Attorney General preclude the BIA from reviewing negative reasonable fear
determinations. 8 C.F.R. § 1208.31(g)(1). Galan’s contention that the filing he
submitted to the BIA should be construed as a motion to reopen does not change
the result. A motion to reopen is intricately related to the underlying removal
order. Sarmadi v. INS, 121 F.3d 1319, 1321 (9th Cir. 1997). Thus, the absence of
authority to review a particular class of removal orders also suggests the absence of
authority to reopen those proceedings, unless an independent source of legal
Page 3 of 3
authority for reopening exists. See id. Here, the only independent source of
authority potentially available is the regulation that generally authorizes the BIA to
reopen proceedings. 8 C.F.R. § 1003.2(a). However, by its plain terms, that
regulation authorizes the BIA to reopen proceedings only if it has rendered a prior
decision in the case. Id. The BIA did not make a prior decision in this case
because it had no role in Galan’s reasonable fear proceedings.
In essence, Galan challenges the Attorney General’s decision to structure
reasonable fear proceedings in such a way that the BIA has no role to play in
reviewing adverse determinations made by immigration judges. That challenge
lacks merit. The BIA is “a regulatory creature,” and nothing compels the Attorney
General to provide the BIA with authority to review or reopen reasonable fear
proceedings in which an immigration judge has made an adverse determination.
INS v. Doherty, 502 U.S. 314, 327 (1992) (plurality opinion).
PETITION DENIED.