Pirir Chitay v. Garland ( 2023 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUL 20 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
PABLO EDWIN PIRIR-CHITAY, No. 21-898
Petitioner, Agency No. A071-583-933
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted July 10, 2023**
Pasadena, California
Before: SANCHEZ and MENDOZA, Circuit Judges, and DONATO,*** District
Judge.
Petitioner Pablo Edwin Pirir-Chitay, a native and citizen of Guatemala,
petitions for review of a decision by the Board of Immigration Appeals (BIA)
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable James Donato, United States District Judge for the
Northern District of California, sitting by designation.
denying a motion to sua sponte reopen his removal proceedings.1 We have
jurisdiction under 8 U.S.C. § 1252(a) to review the BIA’s denial of a motion to
reopen. Perez-Camacho v. Garland, 54 F.4th 597, 603 (9th Cir. 2022). But “we
have no jurisdiction to review the BIA’s sua sponte authority,” Lona v. Barr, 958
F.3d 1225, 1232 (9th Cir. 2020), except “for the limited purpose of reviewing the
reasoning behind the decision[] for legal or constitutional error,” Bonilla v. Lynch,
840 F.3d 575, 588 (9th Cir. 2016). We review due process claims de novo.
Mukulumbutu v. Barr, 977 F.3d 924, 925 (9th Cir. 2020).
The BIA did not err in concluding that Pirir-Chitay was ineligible to seek
cancellation of removal under 8 U.S.C. § 1229b(a). The BIA applied a
precedential decision in Matter of Hernandez-Romero, 28 I. & N. Dec. 374, 378
(B.I.A. 2021) to find that 8 U.S.C. § 1229b(c)(6) barred Pirir-Chitay from seeking
cancellation of removal because he had previously been granted a special rule
cancellation of removal under section 203 of the Nicaraguan Adjustment and
Central American Relief Act (NACARA).2 Pirir-Chitay’s argument that
1
The BIA denied the motion to reopen as untimely and number-barred under 8
U.S.C. § 1229a(c)(7) and 8 C.F.R. § 1003.2(c). Pirir-Chitay did not challenge that
decision in his opening brief. Consequently, this claim is waived. See Rizk v.
Holder, 629 F.3d 1083, 1091 n.3 (9th Cir. 2011), overruled in part on other
grounds by Alam v. Garland, 11 F.4th 1133, 1135 (9th Cir. 2021) (en banc).
2
Pub. L. No. 105-100, 111 Stat. 2196 (1997), amended by Pub. L. 105-139, 111Stat. 2644 (1997).
2
Hernandez-Romero was wrongly decided is foreclosed by our decision in
Hernandez v. Garland, 38 F.4th 785, 792 (9th Cir. 2022) (finding special rule
cancellation under NACARA § 203 is cancellation of removal under 8 U.S.C.
§ 1229b, and so request for second cancellation is barred by 8 U.S.C.
§ 1229b(c)(6)).3
Pirir-Chitay also argues that the BIA’s reliance on Hernandez-Romero was a
due process violation because that decision was issued while his motion to reopen
was pending and applied “retroactively” without additional opportunity for
briefing. Pirir-Chitay’s argument fails because he does not have a “legitimate
claim of entitlement” to submit additional briefing on his motion for sua sponte
reopening. Ruiz-Diaz v. United States, 703 F.3d 483, 487 (9th Cir. 2012). No
statute or regulation provides Pirir-Chitay with a right to submit additional
briefing. See generally Bonilla, 840 F.3d at 585. And although the BIA cannot
rely on “legal or constitutional error” when declining to reopen proceedings sua
sponte, id. at 588, the agency otherwise has broad discretion to consider (or to
ignore) information that may be relevant to its decision, id. at 585. As discussed
3
The government suggests that Pirir-Chitay did not exhaust his challenge to
Hernandez-Romero under 8 U.S.C. § 1252(d). But the exhaustion requirement “is
not jurisdictional and does not oblige a noncitizen to seek discretionary review,
like reconsideration before the [BIA].” Santos-Zacaria v. Garland, 143 S. Ct.
1103, 1120 (2023). We have jurisdiction over his claim that the denial of sua
sponte reopening was based on legal error. Bonilla, 840 F.3d at 588.
3
above, the BIA’s explanation for denying Pirir-Chitay’s motion for sua sponte
reopening contained no legal or constitutional error. The agency’s exercise of its
discretion therefore did not deprive him an “interest protected by the Due Process
Clause.” See Mendez-Garcia v. Lynch, 840 F.3d 655, 669 (9th Cir. 2016) (quoting
Hyuk Joon Lim v. Holder, 710 F.3d 1074, 1076 (9th Cir. 2013)).
Because we find no legal or constitutional error, we lack jurisdiction to
review the BIA’s decision to deny sua sponte relief. Bonilla, 840 F.3d at 588.
PETITION DENIED in part and DISMISSED in part.
4