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.