Thoth Sun v. MERRICK B. GARLAND, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
THOTH SUN,
Petitioner,
v.
MERRICK B. GARLAND, Attorney
General,
Respondent.
No. 19-71507
Agency No. A023-778-717
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted June 11, 2021**
Pasadena, California
Before: MURGUIA, BADE, and LEE, Circuit Judges.
Thoth Sun, a native and citizen of Cambodia, petitions for review of the Board
of Immigration Appeals’s (“BIA”) dismissal of Sun’s appeal of an immigration
judge’s denial of sua sponte reopening. We dismiss the petition in part and deny the
* 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).
FILED
JUN 16 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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petition in part.1
In general, we lack jurisdiction to review the denial of sua sponte reopening,
which is a matter of agency discretion. See Ekimian v. INS, 303 F.3d 1153, 1159
(9th Cir. 2002). However, we may review such denials “for the limited purpose of
determining whether the Board based its decision on legal or constitutional error.”
Bonilla v. Lynch, 840 F.3d 575, 581 (9th Cir. 2016). In other words, “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.” Lona v. Barr, 958 F.3d 1225, 1237 (9th Cir. 2020).
Sun sought reopening more than a decade after the conclusion of his initial
removal proceedings based on a change in the applicable law. He contends that the
BIA erred by applying a diligence requirement in denying his request for sua sponte
reopening. Here, the BIA referred to Sun’s diligence in pursuing reopening, among
other factors, in determining that there was no “exceptional situation . . . which
would warrant [the] exercise of sua sponte reopening.” Because this decision
“evince[d] no misunderstanding” about the BIA’s discretion, we lack jurisdiction to
review it. See id. at 1234–35.
1 Because the parties are familiar with the facts, we do not recite them here except
as necessary to resolve the issues in the petition for review.

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In addition, Sun contends that the IJ was required to reopen his removal
proceedings because execution of his 2004 removal order would constitute a “gross
miscarriage of justice.” However, the cases Sun relies on address reinstated removal
orders, not motions to reopen. See, e.g., Vega-Anguiano v. Barr, 982 F.3d 542, 544
(9th Cir. 2019) (as amended). We decline Sun’s invitation to extend these holdings
beyond the reinstatement context, particularly given our case law establishing that
the agency is not required to grant sua sponte reopening based on a subsequent
change in law that makes clear a noncitizen’s criminal conviction is no longer a
removable offense. See, e.g., Lona, 958 F.3d at 1228–30. Therefore, we deny the
petition for review as it relates to the gross-miscarriage-of-justice argument.2
PETITION DISMISSED IN PART AND DENIED IN PART.
2 We also deny Sun’s pending motion for a stay of removal as moot. See Doc. 5.

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