Bruno Nunez-Orejuela v. JEFFREY ROSEN, Acting United States Attorney General

UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
_________________________________
BRUNO NUNEZ-OREJUELA,
Petitioner,
v.
JEFFREY ROSEN,
Acting United States Attorney General,*
Respondent.
No. 20-9512
(Petition for Review)
_________________________________
ORDER AND JUDGMENT**
_________________________________
Before HARTZ, KELLY, and EID, Circuit Judges.
_________________________________
Bruno Nunez-Orejuela, a native and citizen of Colombia, petitions for review
of a decision by the Board of Immigration Appeals (BIA) declining to reopen his
immigration proceeding sua sponte. Because we lack jurisdiction to review the
BIA’s discretionary decision that Mr. Nunez failed to show an exceptional situation,
* On December 24, 2020, Jeffrey Rosen became Acting Attorney General of
the United States. Consequently, his name has been substituted for William P. Barr
as Respondent, per Fed. R. App. P. 43(c)(2).
** After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
submitted without oral argument. This order and judgment is not binding precedent,
except under the doctrines of law of the case, res judicata, and collateral estoppel. It
may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1
and 10th Cir. R. 32.1.
FILED
United States Court of Appeals
Tenth Circuit
January 11, 2021
Christopher M. Wolpert
Clerk of Court
Appellate Case: 20-9512 Document: 010110462724 Date Filed: 01/11/2021 Page: 1

-- 1 of 5 --

2
which decision alone supports the BIA’s denial of reopening, we dismiss the petition
for review for lack of jurisdiction in part and deny the remainder as moot.
BACKGROUND
Mr. Nunez was deported after pleading guilty to a drug offense in Utah. He
later illegally returned to the United States, obtained an approved visa petition
through his marriage to a United States citizen, and convinced the Utah courts to
vacate his drug conviction. He therefore sought to reopen his prior immigration
proceeding so that he could adjust his status. The immigration judge denied his
motion to reopen and to rescind his earlier deportation order, and the BIA dismissed
his appeal. The BIA then denied his motion for reconsideration. Mr. Nunez did not
seek review of those decisions. Instead, he moved the BIA to exercise its sua sponte
authority to reopen his proceeding.
The motion to reopen sua sponte stated that, after the BIA’s dismissal of
Mr. Nunez’s appeal, his wife was granted legal guardianship and custody of her
grandchildren, one of whom suffers from psychological issues. Mr. Nunez argued
that the special needs of this grandchild, combined with other challenges in the
family’s lives, constituted exceptional hardship that made sua sponte reopening
appropriate. The BIA, however, held that the motion “does not demonstrate an
exceptional situation that would warrant the exercise of our discretion to reopen
Appellate Case: 20-9512 Document: 010110462724 Date Filed: 01/11/2021 Page: 2

-- 2 of 5 --

3
proceedings under our sua sponte authority.” Admin. R., Vol. 1 at 3. It therefore
denied relief.1 Mr. Nunez petitions for review of that decision.
DISCUSSION
“The [BIA] 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).2 The BIA has held that
its sua sponte authority is “an extraordinary remedy reserved for truly exceptional
situations.” In re G-D-, 22 I. & N. Dec. 1132, 1134 (BIA 1999). But “[t]he
regulation . . . provides no standards controlling or directing the BIA’s decision
whether to reconsider on its own motion.” Belay-Gebru v. INS, 327 F.3d 998, 1001
(10th Cir. 2003) (citing Heckler v. Chaney, 470 U.S. 821, 830 (1985)). We therefore
have held that we lack jurisdiction to review the BIA’s discretionary decision not to
exercise its sua sponte authority “[b]ecause we have no meaningful standard against
which to judge the BIA’s exercise of its discretion.” Id.
We also have stated, however, that even in cases involving the BIA’s
sua sponte authority, we retain “jurisdiction to review ‘constitutional claims or
questions of law’ raised in a petition for review.” Salgado-Toribio v. Holder,
1 The BIA further stated that reopening was not warranted because Mr. Nunez
was not eligible to adjust his status, in that his vacated drug conviction established a
reason to believe he participated in drug trafficking. We do not reach Mr. Nunez’s
challenge to this alternative reason. The BIA’s exceptional-situation determination
alone supports the denial of the motion to reopen, and for the reasons discussed
below, we lack jurisdiction to review that decision. We therefore deny as moot that
portion of the petition challenging the BIA’s alternative rationale.
2 This provision has been amended effective January 15, 2021, but the prior
version of the regulation applies here.
Appellate Case: 20-9512 Document: 010110462724 Date Filed: 01/11/2021 Page: 3

-- 3 of 5 --

4
713 F.3d 1267, 1271 (10th Cir. 2013) (quoting 8 U.S.C. § 1252(a)(2)(D)). The
Supreme Court recently held that the term “questions of law” in § 1252(a)(2)(D)
“includes the application of a legal standard to undisputed or established facts.”
Guerrero-Lasprilla v. Barr, 140 S. Ct. 1062, 1067 (2020). Mr. Nunez asserts that
Guerrero-Lasprilla allows this court to review the BIA’s denial of his motion to
reopen sua sponte.
Mr. Nunez attempts to dress his arguments as questions of law, but simply put,
they boil down to assertions that the BIA erred in concluding that the facts of his case
failed to establish an exceptional situation. The exceptional-situation decision is a
discretionary one. See Salgado-Toribio, 713 F.3d at 1270-71 (“Petitioner only
challenges the BIA’s holding that Petitioner had not presented an exceptional
situation warranting sua sponte reopening of his removal proceedings. But our
precedent clearly forecloses any review of that discretionary decision.”). And we are
not persuaded that Guerrero-Lasprilla makes that discretionary decision reviewable.
As stated above, the BIA’s decision is unreviewable due to a lack of any
“meaningful standard against which to judge the BIA’s exercise of its discretion.”
Belay-Gebru, 327 F.3d at 1001. Guerrero-Lasprilla did not involve a motion to
reopen under the BIA’s sua sponte authority, and it did not establish any standard for
this court to apply in such circumstances.
Moreover, we recently rejected a Guerrero-Lasprilla argument in the context
of another type of unreviewable discretionary decision—the agency’s determination
that a petitioner failed to show the exceptional hardship necessary for cancellation of
Appellate Case: 20-9512 Document: 010110462724 Date Filed: 01/11/2021 Page: 4

-- 4 of 5 --

5
removal. In Galeano-Romero v. Barr, 968 F.3d 1176, 1182 (10th Cir. 2020), the
petitioner “attempt[ed] to raise a question of law under § 1252(a)(2)(D) by asserting
that the [BIA] misapplied its own precedent regarding what qualifies as ‘exceptional
and extremely unusual hardship.’” Notwithstanding Guerrero-Lasprilla, we held that
“[a] petition for review does not raise a question of law by disputing the [BIA’s]
appraisal of the degree of hardship likely to [the petitioner’s] wife.” Id. We
concluded that “[w]e lack jurisdiction to review the [BIA’s] discretionary decision,
based on the facts of the case, whether an alien’s spouse will suffer an exceptional
and extremely unusual hardship.” Id. at 1182-83. Similarly, we are not convinced
that Mr. Nunez raises a reviewable question of law by asserting that the BIA
misapplied its precedent in concluding that the facts of his case failed to establish an
exceptional situation warranting exercise of its sua sponte authority.
CONCLUSION
The petition for review is dismissed in part and denied as moot in part.
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
Appellate Case: 20-9512 Document: 010110462724 Date Filed: 01/11/2021 Page: 5

-- 5 of 5 --