NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAY 18 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ELIFONSO GONZALEZ-OLIVERA, AKA No. 18-72702
Elifonso O. Gonzalez,
Agency No. A090-305-521
Petitioner,
v. MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted May 5, 2021**
Seattle, Washington
Before: BOGGS,*** TASHIMA, and MURGUIA, Circuit Judges.
Petitioner Elifonso Gonzalez-Olivera, a native and citizen of Mexico, seeks
review of the Board of Immigration Appeals (“BIA”) order affirming an
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Danny J. Boggs, United States Circuit Judge for the
U.S. Court of Appeals for the Sixth Circuit, sitting by designation.
immigration judge’s (“IJ”) denial of his motion to reopen a 1994 removal order. We
deny the petition.
Gonzalez entered the United States without inspection in February 1984. He
became a lawful permanent resident in December 1992. In November 1993,
however, Gonzalez pled guilty and was convicted in Washington State for
possession of a controlled substance with intent to deliver (10 pounds of marijuana)
and possession of a controlled substance (two ounces of cocaine). In 1994, Gonzalez
was placed in deportation proceedings where an immigration judge (the “original
IJ”) entered an order of removal on the grounds that Gonzalez had been convicted
of an aggravated felony, in violation of 8 U.S.C. § 1251(a)(2)(A)(iii) (1994), and a
controlled-substance violation, 8 U.S.C. § 1251(a)(2)(B)(i) (1994). Gonzalez was
deported in February 1995. He illegally reentered the United States on the same day.
In March 2017, the Department of Homeland Security arrested Gonzalez and
reinstated his 1994 removal order. Gonzalez signed the reinstatement order and
waived his right to appeal. In January 2018, Gonzalez filed an untimely motion with
the immigration court to reopen his 1994 removal proceeding, seeking to reopen and
collaterally attack the reinstated removal order. Gonzalez also requested
discretionary sua sponte relief based on exceptional circumstances and to correct a
gross miscarriage of justice because, under subsequent circuit-court precedent, his
1993 drug conviction was no longer an aggravated felony or a deportable offense.
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United States v. Valdivia-Flores, 876 F.3d 1201, 1210 (9th Cir. 2017). Gonzalez
also argued that he suffered prejudicial due-process violations because he was not
adequately informed of his right to appeal and his waiver of that right was not
considered and intentional. The IJ denied the motion to reopen and declined to
exercise his sua sponte authority. The BIA affirmed the IJ’s decision.
1. Where, as here, the BIA reviewed the IJ’s decision de novo, we review the
BIA’s decision along with any portion of the IJ’s decision that the BIA expressly
endorsed. Shah v. INS, 220 F.3d 1062, 1067 (9th Cir. 2000). We review denial of a
motion to reopen for abuse of discretion but review purely legal questions de novo.
Bonilla v. Lynch, 840 F.3d 575, 581 (9th Cir. 2016). When the BIA denies sua
sponte reopening or reconsideration as a matter of discretion, we generally lack
jurisdiction to review that decision. See Lona v. Barr, 958 F.3d 1225, 1228 (9th Cir.
2020). But we retain jurisdiction to review a denial of “sua sponte reopening for
the limited purpose of reviewing the reasoning behind the decisions for legal or
constitutional error.” Bonilla, 840 F.3d at 588.
2. Because Gonzalez’s removal order was reinstated, the BIA lacked jurisdiction
to consider his motion to reopen the 1994 removal proceeding. Cuenca v. Barr, 956
F.3d 1079, 1082, 1087–88 (9th Cir. 2020). Indeed, when an alien’s removal order
is reinstated pursuant to 8 U.S.C. § 1231(a)(5), as here, the removal order may not
be reopened pursuant to 8 U.S.C. § 1229a(c)(7). Ibid. We recognize that the BIA
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did not base its denial of reopening on this ground. Our review is typically limited
to “[t]he grounds upon which . . . the record discloses that [the agency’s] action was
based.” Hernandez-Cruz v. Holder, 651 F.3d 1094, 1109 (9th Cir. 2011) (citation
omitted). But that doctrine has no application where the agency, as here, was
required to deny the motion to reopen. See Morgan Stanley Capital Grp. Inc. v. Pub.
Util. Dist. No. 1 of Snohomish Cnty., 554 U.S. 527, 544–45 (2008). “That it provided
a different rationale for the necessary result is no cause for upsetting its ruling”
because to remand “would be an idle and useless formality” and would otherwise
“convert judicial review of agency action into a ping-pong game.” Id. at 545
(citation omitted).
3. Finally, Gonzalez also requested sua sponte relief based on exceptional
circumstances and a gross miscarriage of justice. The BIA’s discretionary sua
sponte denial was not premised on legal or constitutional error, Bonilla, 840 F.3d at
588, and “the BIA’s decision here evinces no misunderstanding about its unfettered
discretion” to sua sponte reopen, Lona, 958 F.3d at 1234. The BIA instead did not
believe that Gonzalez’s situation was “truly exceptional,” in which sua sponte
reopening would be justified. We lack jurisdiction to review the BIA’s sua sponte
denial further. Bonilla, 840 F.3d at 588.
PETITION DENIED
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