Elizabeth Lona v. William Barr

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

ELIZABETH LONA, AKA Lisa No. 17-70329
Elizabeth Lona, AKA Lisa Luna,
AKA Chata Monkiker, Agency No.
Petitioner, A090-045-915

v.
OPINION
WILLIAM P. BARR, Attorney General,
Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals

Argued and Submitted December 5, 2019
San Francisco, California

Filed May 15, 2020

Before: Ronald M. Gould and Consuelo M. Callahan,
Circuit Judges, and Stephen R. Bough, * District Judge.

Opinion by Judge Callahan

*
The Honorable Stephen R. Bough, United States District Judge for
the Western District of Missouri, sitting by designation.
2 LONA V. BARR

SUMMARY **

Immigration

Denying Elizabeth Lona’s petition for review of the
Board of Immigration Appeals’ decision affirming the denial
of her motion for reconsideration, the panel held that: (1) the
BIA’s denial of equitable tolling was not unreasonable; (2)
notwithstanding the BIA’s precedent regarding fundamental
changes in the law, the BIA’s denial of sua sponte
reconsideration was not premised on legal or constitutional
error; and (3) Lona’s “settled course of adjudication”
argument is barred by the general rule that the court lacks
jurisdiction to review claims that the BIA should have
exercised its sua sponte power in a given case.

In 2013, Lona was removed to Mexico based on an
aggravated felony conviction, which related to her California
convictions for petty theft and/or burglary. Over two and a
half years later, she moved for reconsideration in light of
new case law, including Lopez-Valencia v. Lynch, 798 F.3d
863 (9th Cir. 2015), which held that convictions under
California’s theft statute are categorically not aggravated
felonies. First, she argued that Lopez-Valencia, and other
decisions, fundamentally changed the law, invalidating the
aggravated felony status of her convictions and her basis for
removal. Second, she argued that she was entitled to
equitable tolling of the thirty-day timeline for
reconsideration. Third, she cited BIA precedent holding that
a significant development in the law constitutes an

**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
 LONA V. BARR 3

“exceptional circumstance” warranting the agency’s
exercise of its sua sponte authority to reopen or reconsider
cases. The IJ denied the motion, and the BIA affirmed.

First, responding to Lona’s argument that the BIA erred
by not addressing her equitable tolling claim, the panel
concluded that the BIA implicitly rejected that claim. The
panel inferred the BIA’s decision to mean that, regardless of
whether the change in law effected by Lopez-Valencia was
“fundamental,” Lona was not entitled to equitable tolling
because (1) she failed to act with due diligence in
discovering and raising the error asserted by Lopez-Valencia
before the BIA and later, successfully before this court; and
(2) she failed to do so despite the lack of impediments to
obtaining vital information bearing on the existence of the
claim. The panel agreed, explaining that Lona alleged no
facts suggesting diligence, or that some extraordinary
circumstance prevented her from timely filing her motion.

Second, the panel rejected Lona’s contention that the
BIA’s denial of sua sponte reconsideration was premised on
or amounted to “legal or constitutional error” that is
reviewable under Bonilla v. Lynch, 840 F.3d 575 (9th Cir.
2016). The panel explained that review under Bonilla 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. The panel found no such error in the BIA’s
decision here.

Third, the panel rejected Lona’s argument that the BIA’s
decision was contrary to its previous decisions holding that
a fundamental change in the law is an exceptional
circumstance warranting sua sponte reopening. The panel
4 LONA V. BARR

viewed the argument as a tacit invocation of the Third
Circuit’s “settled course of adjudication” doctrine. The
panel explained that the Supreme Court case on which the
Third Circuit based its “settled course” review is directly at
odds with the Third Circuit’s approach, and that “settled
course” review is incompatible with the general rule that the
court lacks jurisdiction to review claims that the BIA should
have exercised its sua sponte power in a given case. The
panel further explained that “settled course” review is abuse-
of-discretion review, as it asks the court to evaluate the
BIA’s exercise of its sua sponte authority in a given case
against its decisions in past cases to consider whether the
BIA may have irrationally departed from its settled practice.
But, the court explained, this is precisely what the court’s
case law prohibits: weighing the wisdom of the BIA’s
decision in any given case.

COUNSEL

Ana F. Barhoum (argued), Olmos & Barhoum LLP, San
Jose, California; Jennie I. Medina (argued), Mira Law Group
A.P.C., San Leandro, California; Mei F. Chen, Canton,
Georgia; for Petitioner.

Micah Engler (argued), Trial Attorney; Andrew N.
O’Malley, Senior Litigation Counsel; Cindy S. Ferrier,
Assistant Director; Office of Immigration Litigation, Civil
Division, United States Department of Justice, Washington,
D.C.; for Respondent.
 LONA V. BARR 5

OPINION

CALLAHAN, Circuit Judge:

Four years ago, in Bonilla v. Lynch, 840 F.3d 575 (9th
Cir. 2016), we addressed how changes in immigration law
“affect an individual ordered deported from the United
States when, as it turns out, the law concerning the grounds
for deportation, or for denial of relief from deportation,
changes after the individual is ordered deported.” Id. at 578.
We reaffirmed that the decision to grant or deny sua sponte
relief in such circumstances is “committed to agency
discretion by law and, therefore, unreviewable.” Mejia-
Hernandez v. Holder, 633 F.3d 818, 823 (9th Cir. 2011). At
the same time, we held we have jurisdiction to review Board
of Immigration Appeals (BIA) denials of sua sponte
reconsideration or reopening for “legal or constitutional
error.” Bonilla, 840 F.3d at 588.

Bonilla remains settled law in the Ninth Circuit. BIA
denials of sua sponte relief premised on legal or
constitutional error remain the “one narrow exception” to
our rule that the agency’s sua sponte authority is not subject
to judicial review. Menendez-Gonzalez v. Barr, 929 F.3d
1113, 1116 (9th Cir. 2019). However, in Menendez-
Gonzalez, we alluded to a potential expansion of Bonilla in
cases where “petitioners ‘establish that the BIA has limited
its discretion via a policy, rule, settled course of
adjudication, or by some other method, such that the BIA’s
discretion can be meaningfully reviewed for abuse.’” Id.
at 1117 (quoting Sang Goo Park v. Attorney Gen., 846 F.3d
645, 653 (3d Cir. 2017)).
6 LONA V. BARR

The petitioner, 1 Elizabeth Lona, seeks to take advantage
of this language, asking us to exercise our limited
jurisdiction under Bonilla to reverse the BIA’s denial of
reconsideration based on “a fundamental change in the law”
that occurred two years after she was ordered removed,
waived her appeal, and was removed to Mexico. She points
to BIA precedent that such changes qualify as “exceptional
situations” warranting sua sponte relief and cites similar
cases where the BIA granted sua sponte reopening or
reconsideration. She also argues the BIA should have
excused her untimeliness by applying equitable tolling.

We hold that: (1) the BIA’s denial of equitable tolling
was not unreasonable; (2) notwithstanding the BIA’s
precedent regarding fundamental changes in the law, the
BIA’s denial of sua sponte reconsideration here was not
premised on legal or constitutional error; and (3) Lona’s
“settled course” argument is barred by our general rule that
we lack jurisdiction to review claims “that the BIA should
have exercised its sua sponte power” in a given case.
Ekimian v. INS, 303 F.3d 1153, 1159 (9th Cir. 2002).
Accordingly, we deny the petition for review.

I

Elizabeth Lona is a native and citizen of Mexico. She
entered the United States in 1974, the year she was born, and
became a lawful permanent resident in 1989.

1
We use the term “petitioner” to refer to the party so described in
this court, the person seeking relief from an order of removal. In
proceedings before the BIA and the immigration court, that person is
denominated the “respondent.” We attempt to minimize confusion by
using “respondent” only when necessary.
 LONA V. BARR 7

In 2009, Lona was convicted of petty theft and petty theft
with priors in violation of California Penal Code sections
484 and 666. Two years later, she was convicted of second-
degree burglary, in violation of California Penal Code
section 459, and was placed in removal proceedings. Lona
applied for asylum, withholding of removal, and protection
under the Convention Against Torture (CAT), citing
generalized fears of persecution and torture in Mexico due
to her sexual orientation. An Immigration Judge (“IJ”)
denied these applications and summarily ordered Lona
removed based on her aggravated felony conviction. 2 Lona
moved to withdraw her right to appeal to the BIA, the IJ
granted her motion, and in April 2013 she was removed to
Mexico.

Over two and a half years later, Lona moved for
reconsideration of her final removal order in light of Lopez-
Valencia v. Lynch, 798 F.3d 863 (9th Cir. 2015), Rendon v.

2
See 8 U.S.C. § 1227(a)(2)(A)(iii) (“Any alien who is convicted of
an aggravated felony at any time after admission is deportable.”);
8 U.S.C. § 1101(a)(43)(G) (defining “aggravated felony” to include,
inter alia, “a theft offense (including receipt of stolen property) or
burglary offense for which the term of imprisonment [is] at least one
year”). The IJ did not clarify which of Lona’s convictions (if not both)
counted as an aggravated felony. DHS also alleged removability under
8 U.S.C. § 1227(a)(2)(A)(ii) based on Lona’s conviction of two crimes
involving moral turpitude (“CIMT”). Lona argues that her second-
degree burglary conviction is not a CIMT under Rendon v. Holder,
764 F.3d 1077 (9th Cir. 2014), and an earlier decision, Hernandez-Cruz
v. Holder, 651 F.3d 1094 (9th Cir. 2011), and that this alternative
grounds for removal is therefore invalid because, at most, she stands
convicted of only one CIMT. See Castillo-Cruz v. Holder, 581 F.3d
1154, 1160 (9th Cir. 2009) (holding that petty theft under California
Penal Code section 484 is a CIMT). We do not consider this argument
because the BIA sustained removability based on the IJ’s aggravated
felony determination, and not the allegation of two CIMT convictions.
8 LONA V. BARR

Holder, 764 F.3d 1077 (9th Cir. 2014), and Descamps v.
United States, 570 U.S. 254 (2013). First, she argued that
these decisions fundamentally changed the law, invalidating
the “aggravated felony” status of her convictions and,
therefore, her basis for removal. 3 Second, she argued that
she was entitled to equitable tolling of the thirty-day timeline
for seeking reconsideration because she filed her motion as
soon as she discovered her eligibility for termination of
removal proceedings. 4 Third, she cited BIA precedent
holding that “[a] significant development in the law
constitutes an exceptional circumstance” warranting the
agency’s exercise of its sua sponte authority to grant relief
from removal. In re Vasquez-Muniz, 23 I. & N. Dec. 207,
207–08 (BIA 2002).

The Department of Homeland Security (DHS) opposed
Lona’s motion, arguing that Descamps and Lopez-Valencia
were not “fundamental changes in the law” and that,

3
Under Lopez-Valencia, convictions under California’s theft statute
are never aggravated felonies because the statute is categorically broader
than the federal definition of “theft offense” under 8 U.S.C.
§ 1101(a)(43)(G). 798 F.3d at 867, 871–72. Previously, convictions for
petty theft resulting in imprisonment for at least one year (Lona’s petty
theft conviction resulted in a 16-month sentence) were classified as
“aggravated felonies.” United States v. Rivera, 658 F.3d 1073, 1077–78
(9th Cir. 2011). Likewise, Rendon, 764 F.3d at 1084, invalidated the
“aggravated felony” status of second-degree burglary under Cal. Penal
Code section 459 based on categorical overbreadth, while Descamps,
570 U.S. at 265, held that a conviction under section 459 is not a “violent
felony” within the meaning of the Armed Career Criminal Act, 18 U.S.C.
§ 924(e)(2)(B).

4
See 8 U.S.C. § 1229a(c)(6)(B) (providing that motions for
reconsideration “must be filed within 30 days of the date of entry of a
final administrative order of removal”); 8 C.F.R. §§ 1003.2(b)(2),
1003.23(b)(1) (same).
 LONA V. BARR 9

regardless, Lona failed to cite any authority that those cases
“are to be applied retroactively after someone has already
been removed on an Immigration Judge’s order of removal
that was valid when it was executed.” DHS noted that Lona
had withdrawn her right to appeal from her initial order of
removal and argued that no exceptions to untimeliness
applied. The IJ agreed with DHS and summarily denied
Lona’s motion.

Lona appealed the IJ’s decision to the BIA. Without
expressly addressing Lona’s equitable tolling argument, the
BIA affirmed the IJ’s denial of Lona’s motion to reconsider
as “untimely” and noted that Lona “waived her appeal.” The
BIA noted that it “must be persuaded that the respondent’s
situation is truly exceptional” before exercising its sua
sponte authority to reconsider and concluded that Lona had
not met her burden of persuasion:

[Lona] argues that . . . Lopez-Valencia . . .
fundamentally changed the law, such that
[her] conviction is no longer an aggravated
felony. [She] had a full and fair opportunity
to raise arguments similar to the ones
accepted in Lopez-Valencia but failed to do
so. She waived appeal from the Immigration
Judge’s order of removal and was removed.
Her case is final and does not warrant
reconsideration.

Accordingly, the BIA dismissed Lona’s appeal.

Lona timely petitioned us to review the BIA’s decision.
10 LONA V. BARR

II

We have jurisdiction under 8 U.S.C. § 1252. Mata v.
Lynch, 576 U.S. 143, 135 S. Ct. 2150, 2154 (2015); Avagyan
v. Holder, 646 F.3d 672, 674 (9th Cir. 2011). We generally
review the denial of a motion to reconsider a final order of
removal for an abuse of discretion, reversing when the denial
is “arbitrary, irrational, or contrary to law.” Go v. Holder,
744 F.3d 604, 609 (9th Cir. 2014) (citation omitted). Where,
as here, the BIA denies reconsideration pursuant to its sua
sponte authority under 8 C.F.R. § 1003.2(a), we review only
for “legal or constitutional error.” Bonilla, 840 F.3d at 588.
If we find such error, we “remand to the BIA so it may
exercise its authority against the correct ‘legal background.’”
Id. (quoting Pllumi v. Attorney Gen., 642 F.3d 155, 160 (3d
Cir. 2011)).

III

A motion to reconsider a final order of removal generally
must be filed within thirty days of the date of entry of the
order. 8 U.S.C. § 1229a(c)(6)(B). The BIA may equitably
toll this statutory filing deadline, including in cases where
the petitioner seeks excusal from untimeliness based on a
change in the law that invalidates the original basis for
removal. See Lugo-Resendez v. Lynch, 831 F.3d 337, 343–
45 (5th Cir. 2016). When equitable tolling is unavailable,
the BIA may, in its discretion, exercise its sua sponte
authority to “reopen or reconsider on its own motion any
case in which it has rendered a decision.” 8 C.F.R.
§ 1003.2(a).

In order for an individual to obtain sua sponte relief
under 8 C.F.R. § 1003.2(a), “the Board ‘must be persuaded
that the respondent’s situation is truly exceptional.’”
Bonilla, 840 F.3d at 585 (quoting In re G–D–, 22 I. & N.
 LONA V. BARR 11

Dec. 1132, 1134 (BIA 1999)). The BIA has cautioned that
its sua sponte authority “is not meant to cure filing defects
or circumvent the regulations, where enforcing them might
result in hardship.” Id. (quoting In re J–J–, 21 I. & N. Dec.
976, 984 (BIA 1997)). “‘[A] fundamental change in the law’
that represents ‘a departure from established principles’”
qualifies as an exceptional circumstance for which “‘sua
sponte action by the Board is appropriate.’” Id. (quoting In
re G–D–, 22 I. & N. Dec. at 1135). “Importantly, however,
the Board is not required—by regulation or its own
decisions—to reopen proceedings sua sponte in exceptional
situations.” Id. (citing Ekimian, 303 F.3d at 1158).

Lona makes three arguments in support of her petition.
First, she argues that the BIA erred in not addressing her
entitlement to equitable tolling of the statutory deadline for
seeking reconsideration because she filed her motion “as
soon as practicable” after the Ninth Circuit’s decision in
Lopez-Valencia, the timing of which was a circumstance
“beyond her control.” Second, she argues that the BIA
committed “legal error” under Bonilla by misconstruing its
sua sponte authority to reconsider a final order of removal
based on a fundamental change in the law even where, as
here, the petitioner waived her initial appeal and was
removed. Third, Lona argues that the BIA ignored or
misapplied its own precedent “that a fundamental change in
the law is an exceptional circumstance which warrants sua
sponte reopening”—a tacit invocation of the “settled course”
exception we discussed in Menendez-Gonzalez.

We reject Lona’s arguments and hold that the BIA’s
decision fell within its broad discretion, did not involve legal
or constitutional error, and does not entitle her to any relief.
12 LONA V. BARR

A

We “recognize[] equitable tolling of deadlines and
numerical limits on motions to reopen or reconsider during
periods when a petitioner is prevented from filing because of
deception, fraud, or error, as long as the petitioner acts with
due diligence in discovering the deception, fraud, or error.”
Iturribarria v. INS, 321 F.3d 889, 897 (9th Cir. 2003). In
addition, equitable tolling is available where, “despite all due
diligence,” the party invoking the doctrine “is unable to
obtain vital information bearing on the existence of the
claim.” Socop-Gonzalez v. INS, 272 F.3d 1176, 1193 (9th
Cir. 2001) (internal quotation marks and citation omitted).
Although claims for equitable tolling typically arise in
conjunction with claims of ineffective assistance of counsel,
see, e.g., Iturribarria, 321 F.3d at 898–99, claims based on
changes in the law are not unheard of, nor are they
prohibited.

In Lugo-Resendez, the Fifth Circuit remanded for further
factual development of Lugo-Resendez’s claim that he was
entitled to equitable tolling based on Garcia-Carias v.
Holder, 697 F.3d 257 (5th Cir. 2012), which reversed the
BIA’s long-held and unequivocal ban on reopening of
removal proceedings once an individual ordered removed
has departed the United States (the so-called “departure
bar”). 5 Lugo-Resendez, 831 F.3d at 340–41, 343–45. Upon
remand, the BIA found that Lugo-Resendez had “made
repeated efforts over the course of approximately 3 years to
learn whether his proceedings could be reopened” and

5
See 8 C.F.R. §§ 1003.2(d), 1003.23(b)(1) (providing that “[a]
motion to reopen or to reconsider shall not be made by or on behalf of a
person who is the subject of removal, deportation, or exclusion
proceedings subsequent to his or her departure from the United States”).
 LONA V. BARR 13

abandoned these efforts only “because he was told on
multiple occasions that there was nothing that could be done
about his case and he was unaware that the law affecting his
removability could change.” In re: Sergio Lugo-Resendez,
No. AXXX XX0 500, 2017 WL 8787197, at *3 (BIA Dec.
28, 2017). Once Lugo-Resendez became aware of the
change in the law effected by Garcia-Carias, he took
immediate steps to obtain sua sponte relief. 6 Id. The BIA
held that Lugo-Resendez was entitled to equitable tolling
because he “pursu[ed] his rights with ‘reasonable diligence’”
and “‘extraordinary circumstances . . . beyond his control’
prevented him from filing his motion” sooner. Id. (quoting
Lugo-Resendez, 831 F.3d at 344).

Here, the BIA implicitly rejected Lona’s argument for
equitable tolling when it concluded that her motion for
reconsideration was “untimely by 2 years and 7 months” and
found that Lona “had a full and fair opportunity to raise
arguments similar to the ones accepted in Lopez-Valencia
but failed to do so.” We infer this to mean that, regardless
of whether the change in law effected by Lopez-Valencia
was “fundamental,” Lona was not entitled to equitable
tolling because (1) she failed to act with due diligence in
discovering and raising the error asserted by Lopez-Valencia

6
Lugo-Resendez also relied on the Supreme Court’s earlier decision
in Lopez v. Gonzales, 549 U.S. 47 (2006), which invalidated the
“aggravated felony” status of his conviction for simple possession and,
therefore, the basis for his removal. Lugo-Resendez, 831 F.3d at 339.
Lugo-Resendez argued that it would have been futile for him to seek
reopening based solely on Lopez because, until Garcia-Carias, the
departure bar still applied. Id. at 339–40. The BIA agreed. See In re:
Sergio Lugo-Resendez, 2017 WL 8787197, at *3 (holding that Lugo-
Resendez “filed his motion within a reasonable period of time after he
learned of the change in law embodied in both Lopez and Garcia-
Carias”).
14 LONA V. BARR

before the BIA and later, successfully, before us; and (2) she
failed to do so despite the lack of impediments “to
obtain[ing] vital information bearing on the existence of the
claim.” 7 Socop-Gonzalez, 272 F.3d at 1193.

We agree. Lona has alleged no facts—before the IJ, the
BIA, or on appeal before us—suggesting a diligent pursuit
of her rights in the intervening years between her removal
and Lopez-Valencia; nor has she shown “that some
extraordinary circumstance stood in [her] way and prevented
timely filing” of her motion based on Descamps and Rendon,
which Lopez-Valencia plainly followed. Lugo-Resendez,
831 F.3d at 344 (quoting Menominee Indian Tribe of Wis. v.
United States, 136 S. Ct. 750, 755 (2016) (quoting Holland
v. Florida, 560 U.S. 631, 649 (2010))). Unlike the complete
reversal of BIA precedent at issue in Lugo-Resendez, our
holding in Lopez-Valencia “[a]dher[ed] to the methodology
established by Descamps and our follow-on opinion in
Rendon”—an application of existing law to California’s

7
Of course, it is preferable that the agency “show its work,” as it
were, so that we are not left guessing at its reasons for denying relief.
Although we could remand for a clearer explanation of why the BIA
rejected this aspect of Lona’s appeal—see Viridiana v. Holder, 646 F.3d
1230, 1238–39 (9th Cir. 2011); Lugo-Resendez, 831 F.3d at 343–45—
we decline to do so for two reasons. First, “it is pointless to remand if it
is clear what the agency decision must be,” Barradas v. Holder, 582 F.3d
754, 765 n.9 (7th Cir. 2009) (citation and internal quotation marks
omitted), and we think it is obvious that the BIA, if we were to remand,
would explicitly deny equitable tolling for the reasons we set forth.
Second, in this case the determination of whether Lona has demonstrated
the diligence necessary for equitable tolling “requires neither factual
development nor agency expertise and is properly analyzed by this
court.” Rivera v. Lynch, 816 F.3d 1064, 1078 n.13 (9th Cir. 2016)
(citation and internal quotation marks omitted).
 LONA V. BARR 15

theft statute that we characterized as “not complicated.”
Lopez-Valencia, 798 F.3d at 866, 869.

Given the lack of evidence that Lona took any action
prior to our decision in Lopez-Valencia and the obvious and
uncomplicated nature of her underlying claim, we hold that
the BIA’s implicit denial of Lona’s claim for equitable
tolling was not “arbitrary, irrational, or contrary to law.” Go,
744 F.3d at 609. Accordingly, we deny Lona’s petition for
review as to her motion for reconsideration under 8 U.S.C.
§ 1229a(c)(6).

B

We next address Lona’s contention that the BIA’s
dismissal of her appeal was premised on or amounts to “legal
or constitutional error” under Bonilla.

Before Bonilla, the rule we observed—despite the
general “presumption favoring . . . judicial review of
administrative action,” Kucana v. Holder, 558 U.S. 233, 237
(2010) (citation omitted)—was that we have no jurisdiction
to review the BIA’s sua sponte authority under 8 C.F.R.
§ 1003.2(a). See Ekimian, 303 F.3d at 1159 (“[T]he decision
of the BIA whether to invoke its sua sponte authority is
committed to its unfettered discretion . . . [and is] not subject
to judicial review.”) (emphasis omitted) (quoting Luis v.
INS, 196 F.3d 36, 40 (1st Cir. 1999)). This rule was rooted
in “the ‘truly exceptional situations’ locution” the BIA
adopted for exercising its discretion to reconsider or reopen
on its own motion. Bonilla, 840 F.3d at 585 (quoting In re
G–D–, 22 I. & N. Dec. at 1134). We explained that “the
breadth and generality” of this benchmark “provides no
judicially manageable standard with which to” review the
BIA’s exercise of discretion. Id. at 585–86 (citation
omitted). We held that because there is no “law to apply,”
16 LONA V. BARR

id. at 586, “it is impossible to evaluate agency action for
‘abuse of discretion.’” Ekimian, 303 F.3d at 1158 (quoting
Heckler v. Chaney, 470 U.S. 821, 830 (1985)).

In Bonilla, we carved out a narrow exception to this
jurisdictional bar. The BIA had denied Bonilla’s untimely
motion for reopening not on its merits, but rather because the
agency “believed, incorrectly, that Bonilla had lost his
lawful permanent resident status when he was deported and,
even if reopening were granted,” he would not regain his
status to become eligible for certain relief. 840 F.3d at 589.
On appeal, we held that, as a matter of law, granting the
motion would vacate the final deportation order that caused
Bonilla to lose his lawful permanent resident status, such that
the reopening would not be futile. Id. at 589–90. In other
words, the “legal backdrop” against which the BIA initially
assessed the exceptionality of Bonilla’s situation was
flawed, with the result that the agency had not truly
exercised its discretion. Id. at 579. Because there was “law
to apply” in this situation, we held that we had limited
jurisdiction to recognize the BIA’s reliance “on an incorrect
legal premise” and to remand for the agency to “exercise its
authority against the correct legal background.” Id. at 588–
89 (internal quotation marks and citations omitted).

Our opinion in Bonilla built on our opinion in Singh v.
Holder, 771 F.3d 647 (9th Cir. 2014), where we found “legal
error” in the BIA’s denial of Singh’s untimely motion to
reopen because it was based on the BIA’s incorrect belief
that “it lacked authority to reopen his exclusion proceedings”
on its own motion. 8 Id. at 650. In both cases, we held that

8
This incorrect belief was rooted in the BIA’s reliance on In re
Yauri, 25 I. & N. Dec. 103 (BIA 2009), an inapposite case in which the
BIA erroneously interpreted Yauri’s untimely motion to reopen and
 LONA V. BARR 17

the BIA’s denials of sua sponte relief were not “exercises”
of its unfettered discretion under 8 C.F.R. § 1003.2(a)
because they were premised on legal error. Bonilla,
840 F.3d at 579, 592; see Singh, 771 F.3d at 650 (“Where,
as here, the BIA concludes that it lacks the authority to
reopen, rather than denying a motion to reopen as an exercise
of discretion, we hold that Ekimian does not preclude our
jurisdiction.”). 9 In Bonilla, we held that “[i]f, on remand,
the Board again declines to exercise its sua sponte authority
to reopen, and does so without relying on a constitutionally
or legally erroneous premise, its decision will not be
reviewable.” 840 F.3d at 592.

Here, we see no “incorrect legal premise” in the BIA’s
decision to deny sua sponte relief. The BIA clearly
articulated the “truly exceptional situations” standard for its
exercise of discretion under 8 C.F.R. § 1003.2(a). It cited In
re G–D–, 22 I. & N. Dec. 1132—under which a
“fundamental change in the law” qualifies as an “exceptional
situation” for which sua sponte action may be appropriate,

continue her removal proceedings as a request for a stay of removal so
that she could pursue an application for adjustment of status before the
United States Citizenship and Immigration Services—a request the BIA
had no authority to grant. Singh, 771 F.3d at 651. We held that “the
Board’s denial of Singh’s motion to reopen [in reliance on Yauri] on
jurisdictional grounds was legal error” and remanded “to the BIA for an
exercise of the agency’s discretion.” Id. at 653.
9
See also Regents of the Univ. of Cal. v. U.S. Dep’t of Homeland
Security, 908 F.3d 476, 497 (9th Cir. 2018) (“[W]here the agency’s
decision is based not on an exercise of discretion, but instead on a belief
that any alternative choice was foreclosed by law, the APA’s ‘committed
to agency discretion’ bar to reviewability, 5 U.S.C. § 701(a)(2), does not
apply.”), cert. granted sub nom. Dep’t of Homeland Sec. v. Regents of
the Univ. of California, No. 18-587, 139 S. Ct. 2779 (mem.) (2019),
argued Nov. 12, 2019.
18 LONA V. BARR

id. at 1135—and acknowledged Lona’s argument that
Lopez-Valencia “fundamentally changed the law” by
invalidating the aggravated-felony status of her petty theft
conviction. It then noted three factors weighing against a
finding of exceptional circumstances in her case: (1) Lona’s
failure “to raise arguments similar to the ones accepted in
Lopez-Valencia” despite “a full and fair opportunity” to do
so; (2) Lona’s waiver of appeal; and (3) her actual removal.
Finally, the BIA concluded that Lona’s “case is final and
does not warrant reconsideration,” demonstrating that the
agency clearly understood the discretionary nature of its
decision.

Lona argues that the BIA’s decision was incorrectly
premised on the finality of her case, her appeal waiver, and
her removal to Mexico, and that none of these deprived the
BIA of its authority to grant sua sponte relief. She notes that
in Cardoso-Tlaseca v. Gonzales, 460 F.3d 1102 (9th Cir.
2006), we reaffirmed that an alien who files a timely motion
to reopen removal proceedings may be entitled to reopening,
even post-removal, if his state conviction is vacated and that
conviction formed a “key part of his removal
proceedings.” 10 Id. at 1106–07 (citing Wiedersperg v. INS,
896 F.2d 1179 (9th Cir. 1990); Estrada-Rosales v. INS, 645
F.2d 819 (9th Cir. 1981)). Indeed, like the Fifth Circuit, we
have held the regulatory departure bar—prohibiting post-
departure motions to reconsider or reopen subsequent to the

10
Lona also cites In re L–V–K–, 22 I. & N. Dec. 976 (BIA 1999),
arguing that there the BIA granted a motion to remand for adjustment of
status “despite the fact that the movant had previously waived appeal of
her case.” Lona is mistaken. Rather, the BIA found that it lacked
jurisdiction to consider a motion for adjustment of status where the
movant waived appeal, “her deportation proceedings were never
reopened[,] and the motion to remand was not timely filed following the
[IJ’s] final administrative order.” Id. at 980.
 LONA V. BARR 19

movant’s departure from the United States—to be invalid
and to pose no limitations on an alien’s ability to seek
reconsideration or reopening or the BIA’s authority to grant
such relief. Toor v. Lynch, 789 F.3d 1055, 1060 (9th Cir.
2015); see also Reyes-Torres v. Holder, 645 F.3d 1073 (9th
Cir. 2011); Coyt v. Holder, 593 F.3d 902 (9th Cir. 2010).

But the BIA’s decision here evinces no
misunderstanding about its unfettered discretion under
8 C.F.R. § 1003.2(a). Furthermore, the BIA’s interest in
finality, Lona’s appeal waiver, and her removal are not
irrelevant. 11 The agency found that Lona’s appeal waiver
and removal supported its conclusion that her situation is not
“exceptional” and, therefore, her case “does not warrant
reconsideration.” It did not state that it lacked the authority
to grant reconsideration or to consider the merits of her
motion based on these factors. The scope of our review
under Bonilla 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, see Singh,
771 F.3d at 650, or that exercising its discretion would be
futile, see Bonilla, 840 F.3d at 588–89. In other words, our
review under Bonilla is constricted to legal or constitutional
error that is apparent on the face of the BIA’s decision and

11
See Muyubisnay-Cungachi v. Holder, 734 F.3d 66, 71 (1st Cir.
2013) (“As a general rule, motions to reopen removal hearings are
disfavored as contrary to ‘the compelling public interests in finality and
the expeditious processing of proceedings.’”) (citation omitted);
Villatoro-Ochoa v. Lynch, 844 F.3d 993, 994 (8th Cir. 2017) (noting that
motions to reopen are “disfavored because they undermine the
government’s legitimate interest in finality, which is heightened in
removal proceedings” (internal quotation marks and citation omitted)).
20 LONA V. BARR

does not extend to speculating whether the BIA might have
misunderstood some aspect of its discretion.

Because we hold that the BIA’s decision was free of
“legal or constitutional error,” we need not decide whether
Lopez-Valencia fundamentally changed the law. However,
even if Lopez-Valencia was a fundamental change, it does
not follow that the BIA committed legal or constitutional
error in denying Lona relief. “[T]he Board is not required
. . . to reopen proceedings sua sponte in exceptional
situations,” id. at 585 (citing Ekimian, 303 F.3d at 1158),
even those involving “a ‘fundamental change in the law’” id.
(quoting In re G–D–, 22 I. & N. at 1135). Instead, as the
Eighth Circuit has noted:

[t]he governing regulation, 8 C.F.R.
§ 1003.2(a), still grants the Board unfettered
discretion to reopen sua sponte as it sees fit.
The Board’s recognition of a “fundamental
change in the law” in a particular case is
simply a means of describing when the Board
has decided that a certain intervening
development constitutes an “exceptional
situation” warranting an exercise of its
discretion to reopen. A finding of
“fundamental change” is thus an expression
of discretion; it is not the sort of “legal
premise” that concerned the courts in
[Bonilla,] Pllumi and Mahmood. 12

12
See Pllumi, 642 F.3d at 160 (“[W]hen presented with a BIA
decision rejecting a motion for sua sponte reopening, we may exercise
jurisdiction to the limited extent of recognizing when the BIA has relied
on an incorrect legal premise.”); Mahmood v. Holder, 570 F.3d 466, 469
 LONA V. BARR 21

Barajas-Salinas v. Holder, 760 F.3d 905, 908 (8th Cir.
2014); see also Sang Goo Park, 846 F.3d at 650 (“[T]he
presence of an exceptional situation does not compel [the
BIA] to act; the BIA may still decide against reopening.”).

In short, unlike in Bonilla and Singh, the BIA’s denial of
Lona’s motion to reconsider was untainted by legal or
constitutional error. Because the BIA’s decision evinces no
misunderstanding of the agency’s broad discretion to grant
or deny sua sponte relief—that is, the BIA “exercise[d] its
authority against the correct legal background”—there is
nothing left for us to review. Bonilla, 840 F.3d at 588, 592.

C

Finally, we reject Lona’s argument that the BIA’s
“arbitrary and capricious decision is not entitled to deference
because it is contrary to its previous decisions” and its
precedent holding “that a fundamental change in the law is
an exceptional circumstance which warrants sua sponte
reopening.”

We view this as a tacit invocation of the Third Circuit’s
“settled course of adjudication” doctrine, which we alluded
to, but did not adopt, in Menendez-Gonzalez. In that case,
we concluded that we lacked jurisdiction to review the BIA’s
denial of Menendez-Gonzalez’s untimely motion to reopen
based on the vacatur of his underlying conviction, even
though he presented some evidence (ten unpublished cases)
of the BIA’s practice of granting sua sponte reopening in

(2d Cir. 2009) (“[W]here the Agency may have declined to exercise its
sua sponte authority because it misperceived the legal background and
thought, incorrectly, that a reopening would necessarily fail, remand to
the Agency for reconsideration in view of the correct law is
appropriate.”).
22 LONA V. BARR

similar circumstances. Menendez-Gonzalez, 929 F.3d
at 1117–19. We held that Menendez-Gonzalez did “not
establish a ‘settled pattern of adjudication’ or provide us
with any meaningful standard to apply to limit the agency’s
exercise of discretion”; nor did he establish “any ‘incorrect
legal premise’ in the BIA’s decision not to reopen sua sponte
where [he] waited years before moving to reopen.” Id. at
1118–19 (quoting Bonilla, 840 F.3d at 588). Nevertheless,
we mused that “the BIA’s departure from an established
policy, set ‘by rule or by settled course of adjudication,’
could amount to a legal or constitutional error” under
Bonilla. Id. at 1118 (emphasis added) (citation omitted).
We commented, however, that “the existence of a ‘settled
course’ cannot be lightly inferred,” and that “[t]he question
is whether the agency has acted to constrain its otherwise
unfettered discretion.” 13 Id.

We note that the Supreme Court case upon which the
Third Circuit based its adoption of “settled course” review,
INS v. Yueh-Shaio Yang, 519 U.S. 26 (1996), did not address
the BIA’s sua sponte authority to reopen or reconsider under
8 C.F.R. § 1003.2(a), or the jurisdiction of the Courts of
Appeals to review the agency’s exercise of that authority.
Far from it: the Supreme Court specifically stated that
“jurisdiction over this matter [the granting of waivers of
deportation under 8 U.S.C. § 1251(a)(1)(H)] is not in

13
Since deciding Menendez-Gonzalez, we have engaged in “settled
course” review of the BIA’s sua sponte authority in at least three
unpublished cases, denying the petition for review in each instance. See
Chavez-Mier v. Barr, 773 F. App’x 960 (9th Cir. 2019); Sanchez-
Miranda v. Barr, 782 F. App’x 544 (9th Cir. 2019); Meza-Diveni v. Barr,
773 F. App’x 412 (9th Cir. 2019). Of course, the denial of relief under
the “settled course” exception is not necessarily an affirmation of that
standard of judicial review.
 LONA V. BARR 23

question.” 14 Id. at 29 n.1 (citing 5 U.S.C. § 702). Instead,
Yueh-Shaio Yang concerned the scope of the Attorney
General’s authority to grant such waivers—specifically,
whether the Attorney General was authorized under the
statute to “take into account acts of fraud committed by the
alien in connection with his entry into the United States”
despite the INS’s “settled policy” of not doing so. 519 U.S.
at 27, 30–31. The Supreme Court reversed, not because the
Attorney General had deviated from “settled policy,” but
rather the opposite: the Court held that that the Attorney
General’s “unfettered discretion” was not cabined by the
agency’s settled policy, and therefore our contrary
conclusion was erroneous. Id. at 31–32. Thus, the holding
in Yueh-Shaio Yang is directly at odds with the Third
Circuit’s “settled course” approach.

The Supreme Court did note that an agency’s past
practice is not “irrelevant,” and that an agency could, “by
rule or by settled course of adjudication,” adopt “a general
policy by which its exercise of discretion will be governed,
[such that] an irrational departure from that policy (as
opposed to an avowed alteration of it) could constitute action
that must be overturned as ‘arbitrary, capricious, [or] an
abuse of discretion.’” Id. at 32 (alteration in original) (citing
5 U.S.C. § 706(2)(A)). But Yueh-Shaio Yang did not state
or imply that an agency’s deviation from its past practice in
a particular case is, by default, irrational or improper; or that
agencies must provide special justification whenever they

14
The Court noted that the Illegal Immigration Reform and
Immigrant Responsibility Act of 1996 (IIRA), which stripped courts of
jurisdiction to review any “decision or action of the Attorney General the
authority for which is specified under [Title 8 U.S.C.] to be in the
discretion of the Attorney General,” was not yet in effect. 519 U.S. at 29
n.1 (alteration in original).
24 LONA V. BARR

exercise their discretion in an apparently inconsistent
manner. Furthermore, contrary to the Third Circuit, we do
not read Yueh-Shaio Yang as stating or implying that “settled
course” review could be available in the context of agency
actions that are “committed to agency discretion by law and,
therefore, unreviewable.” Mejia-Hernandez, 633 F.3d
at 823–24 (citing Ekimian, 303 F.3d at 1159).

More fundamentally, we conclude that “settled course”
review is incompatible with the general rule, reaffirmed in
Bonilla, that we lack jurisdiction to review claims “that the
BIA should have exercised its sua sponte power” in a given
case. 15 Ekimian, 303 F.3d at 1159 (emphasis added). The
general rule applies in all cases, even those in which the
petitioner presents evidence, as Lona has, that the BIA has
granted sua sponte relief in similar circumstances in the past,
such as where there has been a fundamental change in the
law. 16 Because the jurisdictional bar still applies, we have

15
See Bonilla, 840 F.3d at 586 n.7 (collecting fifteen published
opinions where we relied on or approvingly cited Ekimian’s holding that
“the ‘exceptional situation’ benchmark does not provide a sufficiently
meaningful standard to permit judicial review” and noting that Ekimian
“remains good law”).

16
Lona cited three unpublished BIA decisions which, she claims,
demonstrate the BIA’s settled policy that “a fundamental change in law
warrants sua sponte reopening.” See In re Benigno Longoria-Ramos,
No. AXX-XX5-773, 2007 WL 2299627 (BIA July 28, 2007) (granting
sua sponte reconsideration and terminating removal proceedings based
on the movant’s “exceptional situation,” after the Fifth Circuit held that
a conviction under Texas’ assault statute is not an aggravated felony for
purposes of removal); In re Francis Okogwu, No. AXX-XX6-621, 2007
WL 2074435 (BIA Jun. 13, 2007) (finding “an exceptional situation
exists due to a change in the law” and ordering sua sponte reopening after
the sole basis for removal was invalidated by a Supreme Court decision
issued one year after filing of the removal order); In re Angel Bringas,
 LONA V. BARR 25

no authority to consider the consistency of the BIA’s
decisions, or to even begin comparing the circumstances of
the present case against the circumstances in past cases
where sua sponte relief was granted.

The Third Circuit, however, suggests that the
“evaluation of the authorities marshaled by the petitioner
logically precedes, rather than follows, a finding of
jurisdiction to conduct abuse-of-discretion review—
although we can of course refer to the BIA’s decision from
which the petition arises to determine whether it fits into the
pattern alleged by the petitioner.” Sang Goo Park, 846 F.3d
at 653. In our opinion, “settled course” review is abuse-of-
discretion review, regardless of when undertaken. It asks
that we evaluate the BIA’s exercise of its sua sponte
authority in a given case against its decisions in past cases to
consider whether the BIA may have “irrationally departed
from its settled practice.” Menendez-Gonzalez, 929 F.3d at
1117. But this is precisely what Ekimian prohibits: our
weighing the wisdom of the BIA’s decision in any given
case. Nothing in Bonilla undermined or amended that
general prohibition. 17

No other Court of Appeals has joined the Third Circuit
in recognizing a “‘settled course’ exception in the context of

No. AXX-XX8-709, 2004 WL 1398720 (BIA Apr. 14, 2004) (granting
sua sponte reopening after the Ninth Circuit held that a state conviction
for possession of methamphetamine is not an aggravated felony for
immigration purposes, invalidating the basis for removal).

17
Cf. Falcon Carriche v. Ashcroft, 350 F.3d 845, 854 n.8 (9th Cir.
2003) (“Framing the question in this manner does not avoid the
jurisdictional bar because this approach, like a direct challenge on the
merits, requires a merits analysis. Calling it something else does not
change the legal character of the challenge.”).
26 LONA V. BARR

sua sponte reopening.” Sang Goo Park, 846 F.3d at 653
n.35. To the extent we suggested that we might do so in
Menendez-Gonzalez, we walk back that suggestion now.
Short of the BIA adopting an explicit rule that it will apply
in every case, our review of the BIA’s unfettered discretion
to reconsider or reopen on its own motion is limited to
instances where the agency misconstrues the parameters of
its sua sponte authority based on legal or constitutional error
and, as a consequence, does not truly exercise its discretion.
See Bonilla, 840 F.3d at 588–89. The Eighth Circuit has
similarly rejected “settled course” review as incompatible
with its own precedent that the BIA is not required to grant
sua sponte relief in a given case, even in cases involving
“exceptional situations.” Tamenut v. Mukasey, 521 F.3d
1000, 1005 (8th Cir. 2008) (en banc) (per curiam).

We further note that adoption of the Third Circuit’s
“settled course” approach would conflict with the general
principle that there is no “theory of partial reviewability” for
actions committed to agency discretion. Schilling v. Rogers,
363 U.S. 666, 674–75 (1960); see Dep’t of Commerce v. New
York, 139 S. Ct. 2551, 2605 (2019) (Alito, J., concurring in
part and dissenting in part) (“[W]hen an action ‘is committed
to agency discretion by law,’ the Judiciary has no role to
play, even when an agency sets forth ‘an eminently
reviewable proposition.’” (quoting ICC v. Bhd. of
Locomotive Eng’rs, 482 U.S. 270, 282–83 (1987) (rejecting
the proposition that “if [an] agency gives a ‘reviewable’
reason for [an] otherwise unreviewable action, the action
becomes reviewable”))). Citing this general principle, the
Eighth Circuit recently declined to adopt an “incorrect legal
premise” exception similar to the one we adopted in Bonilla,
in a case in which the petitioner, like Lona, sought review of
the BIA’s denial of sua sponte relief based on a
“fundamental change in the law.” See Chong Toua Vue v.
 LONA V. BARR 27

Barr, 953 F.3d 1054, 1056–57 & n.2 (8th Cir. 2020) (citing
Bhd. of Locomotive Eng’rs, 482 U.S. at 282–83) (“As the
Supreme Court has made clear, when the law commits
certain actions to agency discretion, we cannot pick and
choose what to review depending on the particulars of each
case.”).

In sum, our review for legal or constitutional error under
Bonilla does not encompass alleged inconsistencies between
the BIA’s grants or denials of discretionary relief. Rather,
we look to whether the particular decision at issue involved
legal error, as the Supreme Court held in Yueh-Shaio Yang.
Here, because Lona’s assertion that the BIA’s denial of sua
sponte relief is inconsistent with its decisions in other cases
does not present an issue of legal or constitutional error, we
deny her petition for review.

CONCLUSION

As we observed in Bonilla: “Immigration law changes
over time. New statutes are enacted; agency interpretations
change; new appellate and Supreme Court decisions issue.”
840 F.3d at 578. Not every circumstance involving a change
in the law that occurs after an individual’s departure from
the United States warrants reconsideration of the
individual’s final removal order or reopening of removal
proceedings. The BIA is empowered to determine on a case-
by-case basis whether the circumstances are exceptional
such that the agency’s exercise of sua sponte authority is
warranted. We decline to adopt an approach that would
invite us to consider—and, inevitably, to second-guess—the
BIA’s case-by-case determination of when to grant sua
sponte relief.
28 LONA V. BARR

The BIA determined Lona’s case to be unexceptional
and not entitled to sua sponte reconsideration. We cannot,
by law, disagree.

THE PETITION FOR REVIEW IS DENIED.