NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS AUG 4 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ALEJANDRO ORTIZ-ALFARO, No. 18-73312
Petitioner, Agency No. A029-677-022
v.
MEMORANDUM*
WILLIAM P. BARR, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted July 6, 2020
Portland, Oregon
Before: BENNETT and MILLER, Circuit Judges, and PEARSON,** District
Judge.
Alejandro Ortiz-Alfaro petitions for review of the immigration judge’s
denial of Ortiz-Alfaro’s motion for sua sponte reopening. We have jurisdiction
under 8 U.S.C. § 1252(a)(1). See Bartolome v. Sessions, 904 F.3d 803, 815 (9th
Cir. 2018). Our review is limited to determining whether the immigration judge’s
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Benita Y. Pearson, United States District Judge for the
Northern District of Ohio, sitting by designation.
decision rested on “legal or constitutional error.” Bonilla v. Lynch, 840 F.3d 575,
588 (9th Cir. 2016); see 8 U.S.C. § 1252(a)(2)(D). Ortiz-Alfaro presents challenges
to both legal and discretionary determinations by the immigration judge. We deny
the petition in part and dismiss it in remaining part.
1. We agree with Ortiz-Alfaro that the immigration judge did not simply
exercise discretion to deny reopening because Ortiz-Alfaro had not satisfied the
standard of Matter of Beckford, 22 I. & N. Dec. 1216 (B.I.A. 2000) (en banc).
Rather, the immigration judge held that satisfying Beckford was a legal
requirement. In Beckford, the Board required a petitioner seeking sua sponte
reopening to “at a minimum . . . demonstrate a substantial likelihood that the result
in his case would be changed if reopening is granted.” Id. at 1219. The
immigration judge in the case at bar explained that “to warrant sua sponte
reopening,” Ortiz-Alfaro had to satisfy Beckford. The immigration judge then
rejected Ortiz-Alfaro’s claim because Ortiz-Alfaro had not “demonstrated a
‘substantial likelihood’ that the outcome of a reopened reasonable fear hearing
would be different.”
But we do not agree that the immigration judge legally erred by applying the
“substantial likelihood” standard of Beckford. Ortiz-Alfaro argues that Beckford
“did not purport to hold that all motions” for sua sponte reopening “must
demonstrate a ‘substantial likelihood’” of a different outcome. We do not read
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Beckford as announcing a holding limited to its facts. The Board spoke clearly: the
“substantial likelihood” standard is a “minimum” requirement to warrant sua
sponte reopening. Beckford, 22 I. & N. Dec. at 1219. The context of Beckford
supports that reading. Among other things, the Board declined to adopt an
alternative standard, proposed by two dissenting board members, under which the
petitioner in that case showed that reopening was warranted because a failure to
reopen his case would “result in a miscarriage of justice.” Id. at 1219–20.
We recognize that Beckford’s “substantial likelihood” standard represents a
narrowing of the “exceptional situation” test set out in Matter of J-J-, 21 I. & N.
Dec. 976 (B.I.A. 1997), and Matter of G-D-, 22 I. & N. Dec. 1132 (B.I.A. 1999).
But the government correctly notes that Ortiz-Alfaro does not argue that anything
in the statute or regulations prohibits the agency from adopting such a standard,
and indeed the regulations themselves allow nearly unfettered discretion. See 8
C.F.R. §§ 1003.2(a), 1003.23(b)(1); Ekimian v. INS, 303 F.3d 1153, 1159 (9th Cir.
2002).
Ortiz-Alfaro does not argue in his opening brief that applying Beckford’s
“substantial likelihood” standard undercuts Ekimian’s reasoning that the
“exceptional situation” standard provides no meaningful standard for judicial
review, and we do not consider that question. See Ekimian, 303 F.3d at 1159.
Similarly, because Ortiz-Alfaro does not assert a claim under Matter of Lozada, 19
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I. & N. Dec. 637 (B.I.A. 1988), we do not consider the application of Beckford in
that context.
Finally, to the extent that Ortiz-Alfaro argues that the immigration judge
deviated from the agency’s settled course of adjudication by applying Beckford, we
lack jurisdiction to consider that claim. See Lona v. Barr, 958 F.3d 1225, 1236–38
(9th Cir. 2020).
2. Ortiz-Alfaro presents three other legal arguments, which we reject.
First, the immigration judge explained that Ortiz-Alfaro’s motion was beyond the
time limit for a statutory motion to reopen. The immigration judge therefore
considered the request for sua sponte reopening on the merits. The immigration
judge did not determine that Ortiz-Alfaro’s reasonable fear proceedings could not
be reopened solely because they were time-barred, as Ortiz-Alfaro contends.
Second, the immigration judge did not find that Ortiz-Alfaro’s motion was
precluded by our prior rejection of his petition for review. Instead, the immigration
judge relied in part on that decision in declining to exercise sua sponte authority.
Third, the immigration judge did not fail to consider Ortiz-Alfaro’s imputed-
nationality claim but instead expressly considered and rejected it. Cf. Garcia v.
Holder, 621 F.3d 906, 913 (9th Cir. 2010) (an agency’s failure to exercise
discretion may constitute legal error).
3. Ortiz-Alfaro frames his remaining arguments as legal challenges, but
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they instead implicate the immigration judge’s exercise of discretion. For example,
Ortiz-Alfaro argues that the immigration judge should have granted reopening
because Matter of M-E-V-G-, 26 I. & N. Dec. 227 (B.I.A. 2014), constituted a
change in law that Ortiz-Alfaro should have had a chance to address before the
prior immigration judge relied on it. We lack jurisdiction to consider these claims.
See Lona, 958 F.3d at 1234–35.
PETITION DENIED IN PART and DISMISSED IN PART.
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