Magana-Magana v. Garland

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

LUCILA MAGANA-MAGANA, No. 23-1887

Agency No.

Petitioner,

A098-918-838

v.

OPINION

MERRICK B. GARLAND, Attorney

General,

Respondent.

On Petition for Review of an Order of the

Board of Immigration Appeals

Submitted October 24, 2024 *

Phoenix, Arizona

Filed December 26, 2024

Before: MILAN D. SMITH, JR., BRIDGET S. BADE, and

DANIELLE J. FORREST, Circuit Judges.

Opinion by Judge Milan D. Smith, Jr.

*

The panel unanimously concludes this case is suitable for decision

without oral argument. See Fed. R. App. P. 34(a)(2).

2 MAGANA-MAGANA V. GARLAND

SUMMARY **

Immigration

Denying in part and dismissing in part Lucila Magana-

Magana’s petition for review a decision of the Board of

Immigration Appeals, the panel held that the court has

jurisdiction to review whether an alien showed

“extraordinary circumstances” to waive the one-year

motion-to-reopen deadline under the Violence Against

Women Act (VAWA), but concluded that the BIA did not

abuse its discretion in determining that Magana-Magana

failed to meet that standard.

The panel explained that the Supreme Court established

in Wilkinson v. Garland, 601 U.S. 209 (2024), and

Guerrero-Lasprilla v. Barr, 589 U.S. 221 (2020), that the

application of a legal standard to undisputed facts—a mixed

question—is a legal question this court can review pursuant

to 8 U.S.C. § 1252(a)(2)(D). Accordingly, the panel

concluded that the extraordinary-circumstances inquiry is a

legal standard that can be applied to specific facts.

In reaching that conclusion, the panel rejected the

Government’s argument that the statute governing the

VAWA waiver, 8 U.S.C. § 1229a(c)(7)(C)(iv)(III), commits

the decision to the Attorney General’s discretion. The panel

explained that this language means that the ultimate waiver

decision is discretionary; it does not mean that the

**

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

MAGANA-MAGANA V. GARLAND 3

antecedent question of extraordinary circumstances is

unreviewable.

The panel also rejected the Government’s contention that

the term “extraordinary circumstances” is so undefined that

it cannot guide judicial review for purposes of

§ 1252(a)(2)(D), concluding that the standard is akin to those

found reviewable in Guerrero-Lasprilla and

Wilkinson. Observing the lack of guiding statutory or

regulatory factors here, the panel explained that there is no

requirement that the standard be exhaustively defined by

statute or regulation, and that, in other contexts, courts

routinely decide whether “extraordinary circumstances”

exist.

Finally, the Government suggested that, even if the

jurisdiction-stripping provisions were inapplicable, the court

would lack jurisdiction because there is no law to apply. The

Government pointed to Ekimian v. INS, 303 F.3d 1153 (9th

Cir. 2002). There, although the BIA had expressed

unwillingness to reopen sua sponte absent “exceptional

situations,” this court held that it lacked jurisdiction to

review the sua sponte determination because the governing

regulation provides no standard. The panel declined to

extend Ekimian here, where the legal standard comes

directly from the plain text of the statute and is one with

which courts are familiar.

On the merits, the panel rejected Magana-Magana’s

contention that the BIA applied the wrong standard,

explaining that the BIA’s single reference to “exceptional”

circumstances, rather than “extraordinary,” was a clerical

error.

The panel also concluded that BIA did not abuse its

discretion in determining that Magana-Magana did not

4 MAGANA-MAGANA V. GARLAND

establish “extraordinary circumstances.” Quoting Wilkinson

and noting the fact-bound nature of the mixed question here,

the panel applied a deferential standard of review. The panel

concluded that the BIA did not abuse its discretion in

concluding that the abuse Magana-Magana suffered did not

constitute “extraordinary circumstances,” and, in any event,

there was no basis to conclude that extraordinary

circumstances caused the delay in filing her motion.

Finally, the panel rejected Magana-Magana’s other

arguments, concluding that she failed to exhaust her

equitable-tolling argument and that the court lacks

jurisdiction to review the BIA’s purely discretionary

decision not to reopen sua sponte here.

COUNSEL

Lucila Magana-Magana, Pro Se, Wilcox, Arizona; Lilia G.

Alcaraz and Ronald Tocchini, Alcaraz Tocchini LLP,

Phoenix, Arizona; for Petitioner.

Paul F. Stone, Senior Litigation Counsel; Ethan B. Kanter,

Assistant Director; Office of Immigration Litigation; Brian

M. Boynton, Principal Deputy Assistant Attorney General;

Civil Division, United States Department of Justice,

Washington, D.C.; for Petitioner.

MAGANA-MAGANA V. GARLAND 5

OPINION

M. SMITH, Circuit Judge:

Lucila Magana-Magana, a citizen of Mexico, seeks

review of a decision of the Board of Immigration Appeals

(BIA) denying her request to reopen her immigration

removal proceedings. The BIA refused to consider Magana-

Magana’s request because it was filed outside of the one-

year period provided by the Violence Against Women Act

(VAWA), and Magana-Magana had not shown

extraordinary circumstances that would warrant overlooking

the untimeliness of her filing. See 8 U.S.C.

§ 1229a(c)(7)(C)(iv)(III). Seeking review from our court,

Magana-Magana argues, inter alia, that the BIA erred in

determining that she had not shown extraordinary

circumstances that would justify excusing the untimeliness

of her motion to reopen.

The parties dispute whether we have jurisdiction to

review the BIA’s extraordinary-circumstances

determination, and our sister circuits are divided on the

question. We agree with Magana-Magana that we do have

jurisdiction to review the BIA’s extraordinary-

circumstances determination. Ultimately, though, we agree

with the Government that the BIA’s determination that

Magana-Magana failed to show extraordinary circumstances

must stand. As to Magana-Magana’s other arguments, we

(1) conclude that the BIA did not apply the wrong legal

standard; (2) decline to reach the merits of Magana-

Magana’s equitable-tolling claim because it is not exhausted,

and (3) lack jurisdiction to review the BIA’s decision not to

reopen removal proceedings sua sponte.

6 MAGANA-MAGANA V. GARLAND

We accordingly deny Magana-Magana’s petition for

review in part and dismiss it in part for lack of jurisdiction.

FACTUAL AND PROCEDURAL BACKGROUND

I. Magana-Magana’s Unlawful Entry and Removal

Proceedings

Lucila Magana-Magana’s life from an early age has been

marked by a tragic pattern of abuse and victimization.

Magana-Magana was born in Mexico in 1958 or 1959.

When Magana-Magana was fifteen years old, she was

sexually assaulted and became pregnant. She lived with her

assailant for three years and had additional children with

him.

After the death of her assailant in a drug-related

shooting, Magana-Magana entered into a relationship with

Rafael Camacho, a supervisor at the greenhouse where she

worked. But although Magana-Magana and Camacho had

several children together, this relationship turned abusive.

Camacho became addicted to drugs and alcohol, and he

began to physically abuse Magana-Magana. Camacho also

became increasingly controlling and would lock Magana-

Magana in their home. Magana-Magana eventually escaped

the relationship, only to be attacked by Camacho when she

returned to her hometown. She also heard rumors that

Camacho was trying to find and kill her.

Frightened of Camacho, Magana-Magana fled to the

United States. She entered the United States unlawfully in

1995 along with a few of her children. Magana-Magana

subsequently had an additional three children with a man in

Wilcox, Arizona. This relationship, too, became physically

abusive.

MAGANA-MAGANA V. GARLAND 7

In 2007, Magana-Magana and one of her adult children

were arrested by officers of the U.S. Border Patrol. The

Department of Homeland Security issued Magana-Magana

a Notice to Appear in removal proceedings. At a hearing

held before an immigration judge (IJ), Magana-Magana

conceded removability and admitted to the allegations in the

Notice to Appear.

Magana-Magana then filed an application for

cancellation of removal pursuant to section 240A(b) of the

Immigration and Nationality Act (INA), see 8 U.S.C.

§ 1229b(b)(1), on the grounds that it would result in

“exceptional and extremely unusual hardship” to three of her

minor children, who were United States citizens. The IJ

issued an order on October 30, 2007, denying Magana-

Magana’s request to cancel removal. 1

Magana-Magana appealed to the BIA, which upheld the

IJ’s ruling and dismissed the appeal. Magana-Magana

sought review in our court, but we concluded in an

unpublished memorandum decision that we “lack[ed]

jurisdiction to review the agency’s discretionary

determination that Magana-Magana failed to show

exceptional and extremely unusual hardship to a qualifying

relative.” Magana-Magana v. Holder, 421 F. App’x 682,

682 (9th Cir. 2011) (mem.). 2 The mandate issued on May 3,

2011.

1

The IJ granted Magana-Magana the right to voluntarily depart. But the

record indicates that Magana-Magana did not voluntary depart after the

decision became final.

2

Magana-Magana’s first name was spelled as “Lucia” in the

memorandum disposition. See Magana-Magana, 421 F. App’x at 682.

8 MAGANA-MAGANA V. GARLAND

II. Magana-Magana’s Relationship with Clyde

Wakefield

In late 2011, Magana-Magana began living with an

Arizona man, Clyde Wakefield. Wakefield and Magana-

Magana were ultimately married in March 2017.

Unfortunately, consistent with the pattern in Magana-

Magana’s life, the relationship quickly turned abusive. Even

from the beginning of their relationship, Wakefield abused

Magana-Magana by verbally and physically assaulting her.

Wakefield would coerce Magana-Magana into forgiving

him and having sexual relations with him by threatening to

have her deported. Magana-Magana felt “trapped” in the

abusive relationship.

Things came to a head in April 2020. After a quarrel,

Wakefield told Magana-Magana that she had to leave. When

Magana-Magana refused and protested, Wakefield “became

enraged” and physically assaulted her, grabbing Magana-

Magana by the throat and choking her. Magana-Magana was

“sure” that Wakefield was going to murder her because she

“saw a killing light in his eyes that frightened [her] in a way

that never had before.” Wakefield then threw

Magana-Magana on the ground. He also said that he was

going to divorce her and threatened that he would “have the

Border Patrol deport” Magana-Magana if she complained to

law enforcement about his abuse. Magana-Magana moved

out after that fight, and the pair ultimately began divorce

proceedings several months later. 3

3

The record is inconsistent as to when Magana-Magana and Wakefield

became legally divorced.

MAGANA-MAGANA V. GARLAND 9

III. Magana-Magana’s Petition to Reopen

In January 2022, Magana-Magana filed a motion with

the BIA requesting that her removal proceedings be

reopened and that her removal be stayed. Magana-Magana

explained that she had filed an application with the U.S.

Citizenship and Immigration Service for benefits under the

VAWA. According to Magana-Magana, she qualified for

immigration benefits, including the cancellation of removal,

based on the abuse that Wakefield inflicted on her.

As Magana-Magana acknowledged, because she had

already been placed into removal proceedings, the BIA

“retain[ed] primary jurisdiction to consider any request . . .

for VAWA relief.” See 8 U.S.C. § 1229a(c)(7); 8 C.F.R.

§ 1003.2(a), (c)(4). Thus, she would have to convince the

BIA to reopen her removal proceedings. Magana-Magana

argued that the proceedings should be reopened because

evidence of her abuse at the hands of Wakefield was

“material to the Board’s consideration of her motion” to

reopen and “[t]he facts and circumstances recited by

[Magana-Magana’s] current VAWA claims were not

available to her or the Board during prior proceedings.”

Magana-Magana faced a significant hurdle because her

motion to reopen was filed well outside of the one-year filing

period provided by statute. See 8 U.S.C.

§ 1229a(c)(7)(C)(iv)(III). Magana-Magana admitted as

much, but she argued that the severity of the abuse inflicted

on her by Wakefield—as well as the domestic violence she

was subjected to throughout her life—constituted

extraordinary circumstances that should excuse her

untimeliness.

The BIA denied Magana-Magana’s motion in a written

order issued on July 20, 2023. The BIA observed that “[t]he

10 MAGANA-MAGANA V. GARLAND

motion to reopen is untimely since it was filed over 1 year

[after] the entry of the final order of removal.” Pursuant to

8 U.S.C. § 1229a(c)(7)(C)(iv)(III), the BIA then considered

whether Magana-Magana had “demonstrated extraordinary

circumstances or extreme hardship to her children to waive

the time limitation.” It ultimately concluded that she had

not, writing:

The respondent has not presented sufficient

evidence of exceptional circumstances to

establish that her motion falls within the

exception to the 1-year filing requirement.

The respondent married her husband in 2017,

over 8 years after the final removal order, and

filed for divorce in 2020, but did not file this

motion to reopen until 2022. While we

recognize and are sympathetic that the

respondent alleges that she has been the

victim of domestic violence both in Mexico

and in the United States, has family ties to

this country, and has depression, we do not

consider her claims, cumulatively

considered, sufficiently persuasive to

demonstrate extraordinary circumstances to

waive the extended filing deadline.

(Citations omitted). The BIA also concluded that it would

not exercise its discretionary authority to reopen Magana-

Magana’s removal proceedings sua sponte.

Magana-Magana timely seeks review of the BIA’s

decision.

MAGANA-MAGANA V. GARLAND 11

ANALYSIS

Magana-Magana’s petition to reopen derives from her

request for relief under the VAWA. Under the VAWA,

abused and battered alien spouses or children of U.S. citizens

or permanent residents are eligible for certain immigration

benefits, including cancellation of removal and adjustment

of status to lawful permanent resident. See 8 U.S.C.

§ 1229b(b)(2); see also Jaimes-Cardenas v. Barr, 973 F.3d

940, 943 (9th Cir. 2020). “[The] VAWA ‘was a generous

enactment, intended to ameliorate the impact of harsh

provisions of immigration law on abused women . . . .’”

Garcia-Mendez v. Lynch, 788 F.3d 1058, 1062 (9th Cir.

2015) (quoting Lopez-Birrueta v. Holder, 633 F.3d 1211,

1215–16 (9th Cir. 2011)).

Additionally, the VAWA extended the time for certain

aliens to file motions to reopen removal proceedings.

“Under our immigration laws, ‘[a]n alien ordered to leave

the country has a statutory right to file a motion to reopen his

removal proceedings.” Hernandez-Ortiz v. Garland, 32

F.4th 794, 800 (9th Cir. 2022) (alteration in original)

(quoting Mata v. Lynch, 576 U.S. 143, 144 (2015)); see also

8 U.S.C. § 1229a(c)(7)(A). “The motion to reopen is an

‘important safeguard’ intended ‘to ensure a proper and

lawful disposition’ of immigration proceedings.” Kucana v.

Holder, 558 U.S. 233, 242 (2010) (quoting Dada v.

Mukasey, 554 U.S. 1, 18 (2008)).

In most cases, a motion to reopen must be filed within

ninety days of the final removal order. See 8 U.S.C.

§ 1229a(c)(7)(C)(i). But, under the VAWA, an individual

classified as an abused spouse who is subject to a final

removal order has one year in which to file for reopening of

a removal proceeding. See 8 U.S.C.

12 MAGANA-MAGANA V. GARLAND

§ 1229a(c)(7)(C)(iv)(III); see also Yasin v. Att’y Gen. of the

U.S., 20 F.4th 818, 822 (3d Cir. 2021).

The one-year time limit for filing a motion to reopen is

not ironclad. Under the VAWA, “the Attorney General may,

in the Attorney General’s discretion, waive this time

limitation in the case of an alien who demonstrates

extraordinary circumstances or extreme hardship to the

alien’s child.” 8 U.S.C. § 1229a(c)(7)(C)(iv)(III).

Additionally, in all removal cases (including those not

covered by the VAWA), the BIA has the authority to reopen

a removal proceeding sua sponte; specifically, it “may at any

time reopen or reconsider on its own motion any case in

which it has rendered a decision.” 8 C.F.R. § 1003.2(a).

Magana-Magana challenges the BIA’s order concluding

that she failed to show the requisite “extraordinary

circumstances” to waive the untimeliness of her motion to

reopen. 4 She first argues that the BIA applied the wrong

legal standard and that it erred in concluding that her

circumstances were not extraordinary within the meaning of

the statute. She then argues that the BIA erred because it

should have applied equitable tolling and because it should

have reopened her removal proceedings sua sponte.

I. Jurisdiction to Review the BIA’s Extraordinary-

Circumstances Determination

Before reaching whether the BIA erred in concluding

that Magana-Magana had not demonstrated the necessary

extraordinary circumstances to justify overlooking the

4

Although the Attorney General may also waive the one-year time

limitation if the alien can demonstrate “extreme hardship to the alien’s

child,” 8 U.S.C. § 1229a(c)(7)(C)(iv)(III), Magana-Magana does not

argue that such hardship exists here.

MAGANA-MAGANA V. GARLAND 13

untimeliness of her motion to reopen, we must first ensure

that we have jurisdiction. See Mendoza-Linares v. Garland,

51 F.4th 1146, 1153 (9th Cir. 2022), cert. denied, 144 S. Ct.

1392 (2024). Federal courts are courts of limited

jurisdiction, and the key question presented here is whether

the subject-matter jurisdiction granted by Congress

encompasses the dispute at hand. See id.

The Government insists that, considering the

jurisdiction-stripping provisions of the INA, we lack

jurisdiction to review the BIA’s conclusion that Magana-

Magana had not demonstrated extraordinary circumstances

that would justify excusing the untimeliness of her motion to

reopen pursuant to § 1229a(c)(7)(C)(iv)(III). For her part,

Magana-Magana argues that the applicability of the

extraordinary-circumstances standard is a mixed question of

law and fact over which we have jurisdiction.

Our sister circuits are divided on the question of whether

we have jurisdiction to review the BIA’s determination that

an alien failed to show extraordinary circumstances.

Compare Yasin, 20 F.4th at 822–24 (concluding that there

was no jurisdiction to review the BIA’s decision that a

petitioner had failed to show the exceptional circumstances

and extreme hardship necessary to justify waiver of the one-

year time limit under the VAWA), and Joseph v. Lynch, 793

F.3d 739, 741 (7th Cir. 2015) (same), with Pena-Lopez v.

Garland, 33 F.4th 798, 802–06 (5th Cir. 2022) (concluding

that the court had jurisdiction because application of the

extraordinary-circumstances standard was a question of

law). We have not yet addressed this question in a

precedential case—although we have answered it in the

14 MAGANA-MAGANA V. GARLAND

affirmative in a non-precedential disposition. See Cardenas

v. Lynch, 669 F. App’x 354, 355 (9th Cir. 2016) (mem). 5

We take this opportunity to address the issue directly and

explain why, particularly considering recent Supreme Court

instruction on the topic, we have jurisdiction to review the

BIA’s extraordinary-circumstances determination.

A. Applicable Law

“In the immigration context, Congress has ‘sharply

circumscribed’ the scope of judicial review of certain BIA

decisions.” Zia v. Garland, 112 F.4th 1194, 1199 (9th Cir.

2024) (quoting Patel v. Garland, 596 U.S. 328, 332 (2022)).

Specifically, although “8 U.S.C. § 1252 generally grants

federal courts the power to review final orders of removal,”

Congress has stripped courts of jurisdiction over two types

of removal orders. Id. “First, § 1252(a)(2)(B)(i) bars

judicial review of any BIA ‘judgment regarding the granting

of relief’ under certain enumerated sections.” Id. Second,

and more germane to this case, Ҥ 1252(a)(2)(B)(ii) prevents

[judicial] review of ‘any other decision or action of the

Attorney General . . . the authority for which is specified

under this subchapter to be in the discretion of the Attorney

General.” Id.

5

Without discussing the jurisdictional issue, we have reached the merits

of the BIA’s extraordinary-circumstances determination in unpublished

memorandum decisions. See, e.g., Singh v. Sessions, 705 F. App’x 636,

637 (9th Cir. 2017) (mem.). Besides being non-precedential, none of

these decisions actually addressed the jurisdictional issue before us here,

so they do not resolve it. See United States v. Kirilyuk, 29 F.4th 1128,

1134 (9th Cir. 2022) (“[Q]uestions which merely lurk in the record,

neither brought to the attention of the court not ruled upon, are not to be

considered as having been so decided as to constitute precedents.”

(quoting United States v. Ped, 943 F.3d 427, 434 (9th Cir. 2019))).

MAGANA-MAGANA V. GARLAND 15

But that is not the end of the story. In § 1252(a)(2)(D),

sometimes referred to as the “Limited Review Provision,”

Congress restored “the jurisdiction of federal courts to

review ‘constitutional claims or questions of law.’” Id.

(quoting Guerrero-Lasprilla v. Barr, 589 U.S. 221, 225

(2020)). In three recent decisions, the Supreme Court has

addressed the scope of this provision and its interplay with

the INA’s jurisdiction-stripping provisions.

First, in Guerrero-Lasprilla v. Barr, the Supreme Court

concluded that “questions of law” as used in § 1252(a)(2)(D)

“includes the application of a legal standard to undisputed or

established facts.” 589 U.S. at 225. Like this case,

Guerrero-Lasprilla involved petitioners who sought to

excuse the untimeliness of a motion to reopen removal

proceedings (albeit, not a motion brought under the VAWA).

See id. at 225–26. The Guerrero-Lasprilla petitioners

contended that the BIA should equitably toll the general

ninety-day time limit for filing a motion to reopen. See id.

The BIA denied the petitioners’ request for equitable tolling

on the ground that they had failed to demonstrate the

requisite due diligence. See id. at 226. The Supreme Court

concluded that § 1252(a)(2)(D) provided jurisdiction to

review the BIA’s decision on the due diligence issue because

it presented a “‘mixed question of law and fact’”—in other

words, a question involving “the application of law to

undisputed or established facts.” Id. at 228 (citing U.S. Bank

Nat’l Ass’n v. Vill. at Lakeridge, LLC, 583 U.S. 387, 394

(2018)). Moreover, such an inquiry qualified as a

“question[] of law” within the scope of § 1252(a)(2)(D). See

id.

Next, in Patel v. Garland, the Supreme Court built on

Guerrero-Lasprilla and concluded that § 1252(a)(2)(B)(i)

strips courts of jurisdiction to review “facts found as part of

16 MAGANA-MAGANA V. GARLAND

discretionary-relief proceedings” and that § 1252(a)(2)(D)

did not restore jurisdiction to review such factfinding. 596

U.S. at 339, 347. Examining Patel, we concluded that its

logic naturally extended to facts underlying the discretionary

decisions referred to in § 1252(a)(2)(B)(ii) as well. See Zia,

112 F.4th at 1200–01.

Most recently, in Wilkinson v. Garland, 601 U.S. 209

(2024), the Supreme Court applied the rule of Guerrero-

Lasprilla to a situation in which a petitioner sought

cancellation of removal (as Magana-Magana had done in

2007). See 601 U.S. at 211–12. To be eligible for

cancellation of removal under the provision at issue in

Wilkinson, the petitioner was required to demonstrate that

his or her “removal would result in ‘exceptional and

extremely unusual hardship’ to a U.S.-citizen or permanent-

resident family member.” Id. (quoting 8 U.S.C.

§ 1229b(b)(1)(D)). The Supreme Court concluded that

§ 1252(a)(2)(D) provided jurisdiction to review an IJ’s

determination that the petitioner failed to show the necessary

exceptional hardship. Id. at 222. The Wilkinson Court

reasoned that “[t]he application of a statutory legal standard

(like the exceptional and extremely unusual hardship

standard) to an established set of facts is a quintessential

mixed question of law and fact,” and “Guerrero-Lasprilla v.

Barr held that such questions are reviewable under

§ 1252(a)(2)(D).” Id. at 212. The Court reached this

conclusion even though the hardship showing was

antecedent to the purely discretionary question of whether

the IJ would cancel the petitioner’s removal. See id. at 218

(“The hardship determination in this case was not

discretionary. Because the IJ held that [the alien’s child’s]

hardship did not satisfy the statutory eligibility criteria, he

never reached the second step and exercised his

MAGANA-MAGANA V. GARLAND 17

unreviewable discretion to cancel or decline to cancel [the

alien’s] removal.”).

B. Application

The Supreme Court’s guidance in its recent cases—

particularly Wilkinson and Guerrero-Lasprilla—clearly

mark our path forward. 6 The application of a legal standard

to an undisputed set of facts—also called a mixed question

of law and fact—is a legal question over which we have

jurisdiction pursuant to § 1252(a)(2)(D). See Wilkinson, 601

U.S. at 211–12; Guerrero-Lasprilla, 589 U.S. at 225. That

is true even if application of the legal standard “requires

close engagement with the facts.” Wilkinson, 601 U.S. at

212.

6

During the pendency of this case, the Supreme Court decided Bouarfa

v. Mayorkas, No. 23-583, --- S. Ct. ----, 2024 WL 5048700 (Dec. 10,

2024), which concluded that the Secretary of Homeland Security’s

decision to revoke initial approval of a visa petition based on “good and

sufficient cause” is a discretionary decision that courts lack jurisdiction

to review. 2024 WL 5048700 at *2–3. Although Bouarfa discusses

when an agency decision is discretionary within the meaning of the

INA’s jurisdiction-stripping provisions, it sheds little light on the

question at issue here. First, the parties in Bouarfa agreed that their case

“d[id] not implicate” § 1252(a)(2)(D), the provision of the INA restoring

jurisdiction over questions of law. See id. at *3 n.2. In contrast,

§ 1252(a)(2)(D) is crucial to our analysis here. Second, the statute at

issue in Bouarfa makes clear that what constitutes “good and sufficient

cause” is solely in the discretion of the Secretary of Homeland Security.

See id. at *5. Specifically, Bouarfa concerned § 1155, which provides

that “[t]he Secretary of Homeland Security may, at any time, for what he

deems to be good and sufficient cause, revoke the approval of any

petition approved by him under section 1154 of this title.” 8 U.S.C.

§ 1155 (emphasis added). The statute at issue here lacks similar indicia

that what constitutes “extraordinary circumstances” is solely a matter of

agency discretion. See 8 U.S.C. § 1229a(c)(7)(C)(iv)(III).

18 MAGANA-MAGANA V. GARLAND

That is precisely what is present here: the extraordinary-

circumstances inquiry under § 1229a(c)(7)(C)(iv)(III) is a

legal standard that can be applied to specific facts. See

Husyev v. Mukasey, 528 F.3d 1172, 1178–79 (9th Cir. 2008)

(concluding that application of the extraordinary-

circumstances standard in an asylum statute was a mixed

question of law and fact). This remains true even though

determining whether specific facts give rise to extraordinary

circumstances may be a fact-intensive inquiry. See

Wilkinson, 601 U.S. at 221–22.

Our conclusion accords with the persuasive reasoning of

the only circuit court to have thoroughly considered the

impact of the Supreme Court’s recent decisions. The Fifth

Circuit, in Pena-Lopez v. Garland, 33 F.4th at 802–06,

addressed the precise question at issue here in light of

Guerrero-Lasprilla: whether it had jurisdiction over the

BIA’s conclusion that an alien had not shown the requisite

extraordinary circumstances or extreme hardship to excuse

the untimeliness of a motion to reopen. The Fifth Circuit

concluded that it had jurisdiction because there was a legal

standard against which to judge the BIA’s decision—

“extraordinary circumstances or extreme hardship to the

alien’s child.” Id. at 805. Specifically, it explained that

“[s]ection 1229a(c)(7)(C)(iv)(III) . . . asks the Attorney

General to apply a legal standard to a set of facts. If the facts

are undisputed, then under Guerrero-Lasprilla, we have

jurisdiction to review the application of that standard to a set

of facts.” Id. (footnote omitted).

We agree with the reasoning in Pena-Lopez, and we

conclude that it represents the best reading of the Supreme

Court’s recent decisions. Indeed, the Supreme Court’s

Wilkinson decision, which came after Pena-Lopez, provides

even more support for this conclusion. See 601 U.S. at 212

MAGANA-MAGANA V. GARLAND 19

(“The application of a statutory legal standard (like the

exceptional and extremely unusual hardship standard) to an

established set of facts is a quintessential mixed question of

law and fact.”). In contrast, the decisions from other circuits

concluding that there is no jurisdiction to review the BIA’s

extraordinary-circumstances determination do not reckon

with the Supreme Court’s recent caselaw and rely on

reasoning that the Supreme Court has since rejected. For

example, the Third Circuit’s opinion in Yasin reasoned that,

to be reviewable, a question of law had to present a “purely

legal inquir[y].” 20 F.4th at 824 (alteration in original)

(quoting Rachak v. Att’y Gen., 734 F.3d 214, 216 (3d Cir.

2013)). The Supreme Court has since rejected that

reasoning. See Guerrero-Lasprilla, 589 U.S. at 230

(“Consider next [§ 1252(a)(2)(D)’s] immediate statutory

context. That context belies the . . . claim that ‘questions of

law’ refers only to ‘pure’ questions and necessarily excludes

the application of law to settled facts.”).

In arguing against this common-sense application of

Wilkinson and Guerrero-Lasprilla, the Government makes

several arguments. None is availing.

First, the Government contends that

§ 1229a(c)(7)(C)(iv)(III) expressly commits the question of

whether there are extraordinary circumstances to the

Attorney General’s discretion, so this is not one of the

circumstances in which jurisdiction is restored by

§ 1252(a)(2)(D). But the Government misreads the statute.

What the express discretionary language in the statute means

is that the ultimate decision of whether to waive the one-year

time limit for an untimely VAWA motion to reopen

constitutes an exercise of discretion. See 8 U.S.C.

§ 1229a(c)(7)(C)(iv)(III) (committing the decision of

whether to “waive” the one-year time limitation to “the

20 MAGANA-MAGANA V. GARLAND

Attorney General’s discretion”). It does not mean that the

antecedent question of whether the petitioner has

demonstrated the necessary requirements to even be eligible

for such discretionary relief—viz., whether the alien has

shown exceptional circumstances or extreme hardship to his

or her children—is an unreviewable discretionary question.

To the contrary, we have jurisdiction to review the

application of the extraordinary-circumstances standard

even though it is antecedent to a discretionary decision.

This conclusion follows naturally from Wilkinson.

There, the Supreme Court addressed a slightly different

statutory scheme that proceeded in two steps: first, the IJ

would determine whether the alien had shown the necessary

“exceptional and extremely unusual hardship” to the alien’s

child. Wilkinson, 601 U.S. at 217. If so, the IJ would then

proceed to the second stage and determine whether to cancel

renewal. See id. at 218. The Wilkinson Court concluded that

it had jurisdiction to review the IJ’s hardship determination,

reasoning that “[b]ecause the IJ held that [the alien’s child’s]

hardship did not satisfy the statutory eligibility criteria, he

never reached the second step and exercised his

unreviewable discretion to cancel or decline to cancel [the

alien’s] removal.” Id. The two-step approach from

Wilkinson applies equally to the statute at issue here and

indicates that we have jurisdiction to review the application

of the extraordinary-circumstances standard—

notwithstanding the fact that the ultimate grant of relief is

within the Attorney General’s discretion.

We find further support in Pena-Lopez, which reads the

statute at issue and Wilkinson in the same manner as we do.

In Pena-Lopez, the Fifth Circuit concluded that although the

court had jurisdiction to review the BIA’s extraordinary-

circumstances determination, it did “not have . . . jurisdiction

MAGANA-MAGANA V. GARLAND 21

to review the ultimate, discretionary decision of whether to

grant relief assuming the alien does meet the legal standard

required in the statute.” 33 F.4th at 805. We agree, and we

accordingly conclude that the language in

§ 1229a(c)(7)(C)(iv)(III) granting the Attorney General

discretion to waive the 90-day time limitation does not

insulate the antecedent extraordinary-circumstances

determination from review as a question of law.

Second, the Government argues that the “extraordinary

circumstances” referred to in 8 U.S.C.

§ 1229a(c)(7)(C)(iv)(III) does not provide a “reviewable

legal standard,” so § 1252(a)(2)(D) “does not restore

jurisdiction over [Magana-Magana’s] disagreement with the

Board’s extraordinary circumstances determination.” Put

differently, the Government contends that the term

“extraordinary circumstances” is so vague and undefined

that it cannot provide the necessary guideposts to review the

BIA’s decision for purposes of § 1252(a)(2)(D).

Again, we disagree. The “extraordinary circumstances

or extreme hardship to the alien’s child” standard in

§ 1229a(c)(7)(C)(iv)(III) is akin to the due-diligence

standard analyzed in Guerrero-Lasprilla and the

“exceptional and extremely unusual hardship” standard

analyzed in Wilkinson—a legal standard that is applied to a

set of facts. As Pena-Lopez explained, the statute at issue

“grants the Attorney General discretion to take an action—

but qualifies that discretion with a legal standard,” namely

“extraordinary circumstances or extreme hardship to the

alien’s child.” 33 F.4th at 804–05.

The Government is correct that, in Wilkinson, the

“exceptional and extremely unusual hardship” standard was

guided by a number of specific factors set out by the BIA.

22 MAGANA-MAGANA V. GARLAND

See 601 U.S. at 215, 222. So was the asylum-specific

“extraordinary circumstances” standard discussed in

Husyev, 528 F.3d at 1180–81. In contrast, there are no

statutory or regulatory factors to guide us or the BIA in

applying the extraordinary-circumstances standard at issue

here. But there is simply no requirement in the case law

(including in Wilkinson or Husyev) that the legal standard at

issue have been exhaustively defined by statute or

regulation. After all, there was no statutory or regulatory

definition of “due diligence” in Guerrero-Lasprilla, 589

U.S. at 227. Moreover, the Government’s argument that

“extraordinary circumstances” is too vague to provide useful

guideposts for judging the BIA’s decision also ignores the

fact that, in other contexts, courts routinely determine

whether “extraordinary circumstances” exist. See, e.g.,

Smith v. Davis, 953 F.3d 582, 588–89 (9th Cir. 2020) (en

banc) (discussing the extraordinary-circumstances standard

in the doctrine of equitable tolling).

Third, and relatedly, the Government suggests that even

if the jurisdiction-stripping provision were inapplicable, we

would lack jurisdiction because we “lack jurisdiction ‘where

statutes are drawn in such broad terms that in a given case

there is no law to apply.’” Diaz-Covarrubias v. Mukasey,

551 F.3d 1114, 1118–19 (9th Cir. 2009) (quoting Alcaraz v.

INS, 384 F.3d 1150, 1161 (9th Cir. 2004)).

The Government is correct that, in “rare instances,” a

statute may be drawn “in such broad terms that in a given

case there is no law to apply.” Heckler v. Chaney, 470 U.S.

821, 830 (1985) (quoting Citizens to Pres. Overton Park v.

Volpe, 401 U.S. 402, 410 (1971)). And “[i]f there is no law

to apply, the issue presumably would not present a ‘question

of law’ within the meaning of” § 1252(a)(2)(D). Husyev,

528 F.3d at 1180.

MAGANA-MAGANA V. GARLAND 23

We conclude, though, that this is not one of those rare

circumstances: the statute at issue clearly articulates a

standard—“extraordinary circumstances or exceptional

hardship to the alien’s child”—that constitutes the relevant

law to apply. 8 U.S.C. § 1229a(c)(7)(C)(iv)(III). And

“extraordinary circumstances” is a standard that courts are

familiar with in a variety of contexts, which supports the

conclusion that it represents a functional legal standard. Cf.

Poursina v. U.S. CIS, 936 F.3d 868, 874 (9th Cir. 2019)

(comparing a “good cause” standard, which federal courts

are familiar with and thus might impose an “administrable

legal standard” rendering the decision judicially reviewable,

with a “national interest” standard that is too broad and

unfamiliar to do so).

To support its argument, the Government points to our

decision in Ekimian v. INS, 303 F.3d 1153 (9th Cir. 2002).

In Ekimian, the governing regulation permitted the BIA to

“at any time reopen or reconsider on its own motion any case

in which it has rendered a decision.” 303 F.3d at 1156

(emphasis omitted) (quoting 8 C.F.R. § 3.2(a)). That

regulation never identified any legal standard limiting the

BIA’s discretion. Although the BIA had previously

expressed an unwillingness to exercise its discretion to

reopen proceedings absent “exceptional situations,” id. at

1157 (quoting In re J-J-, 21 I. & N. Dec. 976, 984 (B.I.A.

1997)), we lacked jurisdiction because “[t]he text of [the

regulation] does not provide a standard controlling or

directing the BIA’s decision whether to reopen, and

similarly provides no standard for reviewing the BIA’s

decision,” id. at 1157–58; see also id. at 1158 (“We do not

believe that an acknowledgment by the BIA that it may

reopen proceedings, and a statement that it will do so under

24 MAGANA-MAGANA V. GARLAND

‘exceptional situations,’ without more, authorizes us to

review the BIA’s decision for abuse of discretion.”).

We decline to extend the logic of Ekimian here, where

the “extraordinary circumstances” test comes directly from

the plain text of the statute at issue. And, as we noted above,

the standard applied here is one with which courts are

familiar. We thus conclude that this is not one of the “rare”

instances in which there is no law to apply. Heckler, 470

U.S. at 830.

Accordingly, we conclude that we have jurisdiction to

review the BIA’s determination that Magana-Magana failed

to show the requisite extraordinary circumstances.

II. Challenges to the Merits

Having assured ourselves of our own jurisdiction, we

proceed to address Magana-Magana’s challenges to the

merits of the BIA’s determination that she failed to show

extraordinary circumstances. Magana-Magana raises two

arguments: (1) the BIA applied the wrong legal standard and

(2) the BIA erred in concluding that she had not shown the

requisite extraordinary circumstances. 7 We reject both

arguments.

7

We note that even if the Government were correct that we lack

jurisdiction to review the BIA’s extraordinary-circumstances

determination—which it is not—we would still have jurisdiction to

ensure that the BIA applied the correct legal standard in coming to its

conclusion. See Bonilla v. Lynch, 840 F.3d 575, 588 (9th Cir. 2016)

(concluding that we would have jurisdiction to determine whether “the

Board relied on an incorrect legal premise” even if the ultimate question

were unreviewable). In other words, even if we lacked jurisdiction to

reach Magana-Magana’s second argument, we could nevertheless reach

her first argument regarding whether the BIA applied the wrong legal

standard.

MAGANA-MAGANA V. GARLAND 25

A. Whether the BIA Applied the Wrong Legal

Standard

Magana-Magana contends that the BIA committed legal

error because it erroneously applied a standard of

“exceptional circumstances” rather than the correct statutory

standard of “extraordinary circumstances.” Magana-

Magana is correct that the BIA seemingly used the incorrect

term at one point in its decision when it stated that she “ha[d]

not presented sufficient evidence of exceptional

circumstances to establish that her motion falls within the

exception to the [one]-year filing requirement” for VAWA

claims. (Emphasis added). But this misstatement does not

mean that the BIA committed reversible legal error.

Viewed in context, the BIA committed a clerical error,

at most. The BIA repeatedly articulated the correct

“extraordinary circumstances” standard and cited 8 U.S.C.

§ 1229a(c)(7)(C)(iv)(III). Only once did the BIA

improperly use the term “exceptional circumstances.”

Viewing the BIA’s decision as a whole, it is clear that the

BIA understood the proper legal standard and applied it.

Accordingly, the BIA’s use of “exceptional circumstances,”

even if erroneous, does not warrant reversal or remand. See

Iraheta-Martinez v. Garland, 12 F.4th 942, 960 (9th Cir.

2021) (concluding that although the BIA did not make the

contours of its analysis “perfectly clear,” it did “enough to

convince us that it did, in fact,” perform the proper analysis);

Alcaraz, 384 F.3d at 1163 (concluding that a clerical error

was not grounds for reversing a BIA decision because the

reality was “clear from the record”); see also Yuhua Guan v.

Barr, 794 F. App’x 657, 658 (9th Cir. 2020) (mem.) (“We

also reject [the alien’s] final argument that a typographical

error in the BIA’s decision requires remand. When the

decision is read in context, it is clear that the BIA agreed

26 MAGANA-MAGANA V. GARLAND

with the IJ’s analysis and denied [the alien’s] claims. The

BIA’s decision was sufficient in all respects, and remand

would be futile and unnecessary.”).

B. Merits of the Extraordinary-Circumstances

Determination

Magana-Magana’s next argument is that the BIA erred

because her circumstances qualify as “extraordinary,”

particularly under the regulatory definition from the asylum

context discussed in Husyev. Given the fact-bound nature of

the mixed question at issue here, we apply a “deferential

standard of review.” Wilkinson, 601 U.S. at 222; see also

Movsisian v. Ashcroft, 395 F.3d 1095, 1098 (9th Cir. 2005)

(“We review the BIA’s denial of a motion to reopen and

remand for abuse of discretion.”).

Under that deferential standard, Magana-Magana cannot

succeed. To begin, although the abuse inflicted on Magana-

Magana by Wakefield (and her other partners) is no doubt

tragic, abuse will be present in most, if not all, VAWA-based

motions to reopen. The “extraordinary circumstances”

demanded by the statute must constitute something more

than abuse. See Pena-Lopez, 33 F.4th at 807 (“[W]hatever

the precise contours of [the extraordinary-circumstances]

standard, we can say confidently that the ordinary (terrible)

circumstances of a VAWA-based motion to reopen and the

usual hardships of a relocation do not suffice.”); cf. Alquijay

v. Garland, 40 F.4th 1099, 1104 (9th Cir. 2022) (“[The

petitioner] does not explain how, in the aggregate, his

circumstances are different from the circumstances of many

applicants who seek refuge in the United States . . . .”).

In applying this standard to the facts here, the BIA did

not abuse its discretion in concluding that the abuse suffered

by Magana-Magana, however terrible, did not constitute the

MAGANA-MAGANA V. GARLAND 27

requisite “extraordinary circumstances.” And even if the

BIA abused its discretion in concluding that the violence that

Magana-Magana suffered during her years with Wakefield

was insufficient to constitute extraordinary circumstances,

there is no basis in the record to conclude that extraordinary

circumstances caused the substantial lapse of time (over a

year) between the beginning of divorce proceedings and the

filing of her motion to reopen. The BIA could have

reasonably rejected Magana-Magana’s argument that the

trauma of the assault could justify her delay in filing the

motion to reopen.

Moreover, that Magana-Magana has suffered from

serious mental illnesses does not indicate that the BIA erred

in applying the legal standard to her case, notwithstanding

the definition of “extraordinary circumstances” in the

asylum context. The BIA reviewed the medical records

adduced by Magana-Magana and recognized her mental

illness, but nevertheless concluded that she did not show

extraordinary circumstances. This is not a case where the

BIA ignored new, relevant evidence. Cf. Agonafer v.

Sessions, 859 F.3d 1198, 1207 (9th Cir. 2017). Rather, the

BIA considered the evidence and, applying the

extraordinary- circumstances standard to the facts,

concluded that the standard was not met. It did not abuse its

broad discretion in doing so.

Magana-Magana further argues that the BIA erred in its

consideration of the evidence because it “failed to provide a

reasoned, detailed explanation for its actions.” This

argument, too, is unavailing. Although the BIA must

“consider the issues raised[] and announce its decision in

terms sufficient to enable a reviewing court to perceive that

it has heard and thought and not merely reacted,” it “does

not have to write an exegesis on every contention.” Id. at

28 MAGANA-MAGANA V. GARLAND

1206–07 (quoting Lopez v. Ashcroft, 366 F.3d 799, 807 n.6

(9th Cir. 2004)). The BIA met this standard here: it recited

Magana-Magana’s new evidence, stated the proper standard,

and explained why it thought that standard had not been met.

This is more than sufficient for us to conclude that the BIA

carefully considered Magana-Magana’s position. See

Najmabadi v. Holder, 597 F.3d 983, 990 (9th Cir. 2010); cf.

Agonafer, 859 F.3d at 1207 (concluding that the BIA had

failed to discharge this duty when it did not make clear that

it had considered newly adduced evidence). 8

III. Magana-Magana’s Other Challenges

Finally, we turn briefly to Magana-Magana’s other

challenges to the BIA’s decision. Specifically, Magana-

Magana argues that (1) the BIA should have applied the

doctrine of equitable tolling to excuse the untimeliness of her

petition and (2) the BIA erred in declining to reopen her

motion sua sponte. Neither argument succeeds.

A. Equitable Tolling

Magana-Magana contends that the BIA should have

applied the doctrine of equitable tolling to excuse the

untimely filing of her motion to reopen. She contends that

she is entitled to equitable tolling based mostly on trauma

from Wakefield’s abuse. But we need not even reach

8

Magana-Magana’s opening brief seems to argue that the BIA erred in

considering her evidence cumulatively. If so, this argument is

frivolous—the BIA is required to consider the evidence cumulatively, at

least in many contexts. See Salguero Sosa v. Garland, 55 F.4th 1213,

1218 (9th Cir. 2022). In any event, this perplexing argument seems to

have been abandoned by the reply brief. Cf. Maciel v. Cate, 731 F.3d

928, 932 n.4 (9th Cir. 2013).

MAGANA-MAGANA V. GARLAND 29

Magana-Magana’s argument because, as the Government

contends, she failed to exhaust this argument before the BIA.

We can review a decision of the BIA only if the alien

“has exhausted all administrative remedies available to the

alien as of right.” Arsdi v. Holder, 659 F.3d 925, 928 (9th

Cir. 2011) (quoting 8 U.S.C. § 1252(d)(1)). “Exhaustion

requires a non-constitutional legal claim to the court on

appeal to have first been raised in the administrative

proceedings below, and to have been sufficient to put the

BIA on notice of what was being challenged.” Umana-

Escobar v. Garland, 69 F.4th 544, 550 (9th Cir. 2023)

(quoting Bare v. Barr, 975 F.3d 952, 960 (9th Cir. 2020)).

But “[a] petitioner ‘need not use precise legal terminology to

exhaust his claim.’” Id. (quoting Arsdi, 659 F.4th at 929).

“‘What matters is that the BIA was sufficiently on notice so

that it “had an opportunity to pass on th[e] issue.”’” Id.

(alteration in original) (quoting Bare, 975 F.3d at 960).

It is undisputed that Magana-Magana did not make an

equitable tolling argument to the BIA. But Magana-Magana

argues that her request that the BIA categorize her

circumstances as “extraordinary” and grant discretionary

relief under 8 U.S.C. § 1229a(c)(7)(C)(iv)(III) was sufficient

to put the BIA on notice of her equitable-tolling claim.

We disagree. Equitable tolling not only requires a

petitioner to show that “some extraordinary circumstance

stood in his way and prevented timely filing,” but also that

the petitioner “has been pursuing his rights diligently.” Bent

v. Garland, 115 F.4th 934, 942 (9th Cir. 2024) (quoting

Holland v. Florida, 560 U.S. 631, 634 (2010)). Magana-

Magana never mentioned the concept of due diligence to the

BIA, much less equitable tolling. Thus, even if Magana-

30 MAGANA-MAGANA V. GARLAND

Magana demonstrated extraordinary circumstances, she

failed to put the BIA on notice of her equitable-tolling claim.

Magana-Magana relies on our opinion in Socop-

Gonzalez v. INS, 272 F.3d 1176 (9th Cir. 2001) (en banc),

overruled on other grounds by Smith, 953 F.3d 582, but

Socop-Gonzalez does not help her case. It is true that, in

Socop-Gonzalez, we concluded that an alien had exhausted

an equitable-tolling claim even though those words were not

used before the agency. 272 F.3d at 1183–84. But in that

case, (1) the alien raised “precisely [the facts] needed to

support an equitable tolling argument,” as well as the related

equitable-estoppel standard and (2) the BIA itself addressed

the equitable issue. See id. at 1184–86. None of those

circumstances is present here: it is beyond dispute that the

BIA never addressed any kind of equitable relief. 9

Accordingly, we conclude that we cannot reach Magana-

Magana’s equitable-tolling argument because it is

unexhausted.

We note that even if we were to reach equitable tolling,

we would still deny the petition for review. 10 We review the

BIA’s decision not to apply the equitable-tolling standard for

an abuse of discretion. See Avagyan v. Holder, 646 F.3d

9

Moreover, we have repeatedly concluded, albeit in non-precedential

decisions, that claims are not exhausted in circumstances like these

notwithstanding Socop-Gonzalez. See, e.g., Fraihat v. Holder, 439 F.

App’x 597, 599 (9th Cir. 2011) (mem.); Yumul v. INS, 78 F. App’x 571,

572 (9th Cir. 2003) (mem.); Marroquin v. INS, 42 F. App’x 952, 953

(9th Cir. 2002) (mem.). We reach the same conclusion here.

10

We assume without deciding that equitable tolling would be available

for untimely petitions to reopen under the VAWA, which is an open

question, cf. Mata, 576 U.S. at 149 n.3. We do not reach the

Government’s argument that equitable tolling is only available in cases

involving the ineffective assistance of counsel.

MAGANA-MAGANA V. GARLAND 31

672, 678 (9th Cir. 2011). It is hard to see how the BIA could

have abused its discretion in declining to apply equitable

tolling here, particularly because equitable tolling requires a

showing of due diligence. Magana-Magana’s petition to

reopen was not simply slightly late due to circumstances

outside of her control—to the contrary, it was years late.

Those years included years in which she was not living with

or married to Wakefield. See Smith, 953 F.3d at 598–99

(“[F]or a litigant to demonstrate ‘he has been pursuing his

rights diligently,’ . . . he must show that he has been

reasonably diligent in pursuing his rights not only while an

impediment to filing caused by an extraordinary

circumstance existed, but before and after as well . . . .”

(quoting Holland, 560 U.S. at 649)).

B. Sua Sponte Reopening

Magana-Magana’s final argument is that the BIA erred

in declining to reopen her removal proceedings sua sponte.

We conclude, however, that the BIA’s decision of whether

or not to reopen a removal proceeding sua sponte is a purely

discretionary decision that we lack jurisdiction to review.

We have previously addressed this precise question. See

Ekimian, 303 F.3d at 1159. The applicable regulation

provides that “[t]he Board may at any time reopen or

reconsider on its own motion any case in which it has

rendered a decision.” 8 C.F.R. § 1003.2(a). In Ekimian, we

reasoned that the BIA’s sua sponte reopening power was

quintessentially discretionary and that there was no

“sufficiently meaningful standard against which to judge the

BIA’s decision not to reopen.” 303 F.3d at 1158–59. 11 We

11

There is an exception to the general rule announced in Ekimian—

courts retain jurisdiction to ensure that the BIA based its ruling on the

32 MAGANA-MAGANA V. GARLAND

rejected the argument that Magana-Magana raises now—

that the BIA’s acknowledgment that it may, but is not

required to, exercise its sua sponte authority in “exceptional

situations” provides the requisite legal standard. See id.

Moreover, we have previously rejected Magana-

Magana’s argument that the Supreme Court’s decision in

Kucana v. Holder, 558 U.S. 233 (2010), effectively

overruled Ekimian. See Mejia-Hernandez v. Holder, 633

F.3d 818, 824 (9th Cir. 2011) (“No significant changes have

occurred since Ekimian that would allow this panel to find a

sufficiently meaningful standard, and allow us to review sua

sponte reopening.”). And Magana-Magana has not pointed

to any other authority casting doubt on Ekimian. We remain

bound by it, and accordingly we lack jurisdiction to review

the BIA’s decision not to reopen removal proceedings sua

sponte.

CONCLUSION

We conclude that Lucila Magana-Magana is not entitled

to the relief she seeks. We have jurisdiction to review the

BIA’s determination that Magana-Magana had not shown

the requisite extraordinary circumstances to justify excusing

the untimeliness of her motion to reopen. But the BIA did

not abuse its discretion in concluding that the abuse suffered

by Magana-Magana, although tragic, was insufficient to

constitute extraordinary circumstances that would justify the

untimeliness. We also reject Magana-Magana’s argument

that the BIA applied the wrong legal standard. Finally, we

proper legal premises. See Bonilla, 840 F.3d at 588. That exception,

though, is seemingly inapplicable here, where Magana-Magana

challenges simply whether there were sufficient circumstances to justify

sua sponte reopening. And Magana-Magana makes no argument that

this case falls within that exception.

MAGANA-MAGANA V. GARLAND 33

reject Magana-Magana’s other arguments, concluding that

she failed to exhaust her equitable-tolling argument and that

we lack jurisdiction to review the BIA’s discretionary

decision not to reopen removal proceedings sua sponte. 12

PETITION FOR REVIEW DENIED IN PART AND

DISMISSED IN PART.

12

The motion for a stay of removal is denied. The temporary stay of

removal expires when the mandate issues.