Roberto Adonay Galan v. Jefferson Sessions

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NOT FOR PUBLICATION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.
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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
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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.