Juan De Dios Molina-Pena v. JEFFERSON B. SESSIONS III, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JUAN DE DIOS MOLINA-PENA,
Petitioner,
v.
JEFFERSON B. SESSIONS III, Attorney
General,
Respondent.
No. 12-73642
Agency No. A092-300-354
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted August 31, 2017
Seattle, Washington
Before: McKEOWN and GOULD, Circuit Judges, and FOOTE,** District Judge.
Juan Molina-Pena petitions for review of the Board of Immigration Appeals’
(“BIA”) decision dismissing his appeal from an immigration judge’s denial of his
motion to reopen his deportation proceedings. We review the denial of a motion to
reopen for abuse of discretion, and questions of law and constitutional issues de
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The Honorable Elizabeth E. Foote, United States District Judge for the
Western District of Louisiana, sitting by designation.
FILED
OCT 18 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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novo. Avila-Sanchez v. Mukasey, 509 F.3d 1037, 1040 (9th Cir. 2007). We defer
to the decision of the BIA unless it acted in a manner that was “arbitrary, irrational,
or contrary to law.” Caruncho v. INS, 68 F.3d 356, 360 (9th Cir. 1995). For the
reasons announced below, we deny in part and grant in part the petition for review,
and remand to the BIA for clarification.
The BIA did not abuse its discretion in denying Molina-Pena’s motion to
reopen as untimely when he did not file his motion until more than a decade after
the deportation order became final and failed to show that he acted with the due
diligence required to warrant equitable tolling. See Iturribarria v. INS, 321 F.3d
889, 897 (9th Cir. 2003).
Because Molina-Pena did not meet the timing requirements and is not
entitled to equitable tolling, his only remaining avenue for relief was to ask the
BIA to reopen his proceedings sua sponte. Bonilla v. Lynch, 840 F.3d 575, 585
(9th Cir. 2016). The BIA has found that its power to reopen sua sponte is limited
to “exceptional circumstances,” In Re J-J-, 21 I. & N. Dec. 976, 984 (BIA 1997),
and we ordinarily lack jurisdiction to review such a determination. See Bonilla,
840 F.3d at 586-88.
Here, it is unclear whether the BIA applied the “exceptional circumstances”
standard to Molina-Pena’s claims. While the BIA briefly referenced the standard
in its order, it clearly applied the “gross miscarriage of justice” standard as well.

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Therefore, we remand to the BIA to clarify the legal standard applied and to
enunciate the reasons for the denial of sua sponte reopening. As is permitted under
the limited scope of review defined in Bonilla, we remand for the “limited
purpose” of requiring the agency to state the reasoning behind its decision, so that
we may review for legal or constitutional error. 840 F.3d at 588.
Accordingly, the petition is DENIED in part, GRANTED in part, and
REMANDED.

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