Hector Salvador Gutierrez- Moreno v. MERRICK B. GARLAND, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
HECTOR SALVADOR GUTIERREZ-
MORENO,
Petitioner,
v.
MERRICK B. GARLAND, Attorney
General,
Respondent.
No. 21-70866
Agency No. A075-494-448
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted December 5, 2022**
Pasadena, California
Before: KELLY,*** IKUTA, and CHRISTEN, Circuit Judges.
FILED
JAN 3 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* 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 Paul J. Kelly, United States Circuit Judge for the U.S.
Court of Appeals for the Tenth Circuit, sitting by designation.

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Hector Salvador Gutierrez-Moreno, a native and citizen of Honduras,
petitions for review of the decision of the Board of Immigration Appeals (BIA)
denying his third motion to reopen his removal proceedings sua sponte.1
We generally have jurisdiction under 8 U.S.C. § 1252(a) to review the BIA’s
denial of a motion to reopen. See Perez-Camacho v. Garland, 42 F.4th 1103, 1107
(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 reject Gutierrez-Moreno’s argument that the BIA committed a legal
error by describing his conviction for child molestation under Section 647 of the
California Penal Code as “significant.” In this context, the BIA is not determining
whether Gutierrez-Moreno’s offense is equivalent to a generic federal offense
under the categorical approach. Cf. Anaya-Ortiz v. Holder, 594 F.3d 673, 680 (9th
Cir. 2010) (holding that the BIA need not apply the categorical approach in
determining what constitutes a “particularly serious crime” for purposes of 8
1 The BIA also denied Gutierrez-Moreno’s motion to reopen as “untimely
and number-barred.” On appeal, Gutierrez-Moreno challenges only the BIA’s
denial of sua sponte reopening, but not the BIA’s determination that his third
motion to reopen was time- and number-barred, and that no exception to those bars
applied.
2

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U.S.C. § 1158(b)(2)(A)(ii)). Because the BIA is not limited to evaluating “the
least of the acts criminalized by the state statute,” Esquivel-Quintana v. Sessions,
137 S. Ct. 1562, 1568 (2017), the BIA did not rely on erroneous legal reasoning
when it concluded that Gutierrez-Moreno’s offense, which involved fondling the
genitals of a nine-year-old girl under the influence of anesthesia at the dental office
where he worked, was a significant offense, see Pablo v. INS, 72 F.3d 110, 113
(9th Cir. 1995) (rejecting argument that child molestation is “not among the most
serious of crimes”); see also Cacoperdo v. Demosthenes, 37 F.3d 504, 508 (9th
Cir. 1994) (describing sexual molestation of a child as a “very serious offense”).
Gutierrez-Moreno’s remaining arguments that the BIA improperly
considered and weighed the equities of his case do not identify any legal 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.” Lona, 958 F.3d at 1235 (quoting Bonilla, 840 F.3d at 588, 592); see also
id. at 1234 (holding there is no jurisdiction to review “those situations where it is
obvious that the [BIA] has denied sua sponte relief . . . as a matter of discretion”).
PETITION DISMISSED.
3

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