                              NOT FOR PUBLICATION                        FILED
                    UNITED STATES COURT OF APPEALS                        AUG 4 2020
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                              FOR THE NINTH CIRCUIT

ALEJANDRO ORTIZ-ALFARO,                         No.    18-73312

                Petitioner,                     Agency No. A029-677-022

 v.
                                                MEMORANDUM*
WILLIAM P. BARR, Attorney General,

                Respondent.

                     On Petition for Review of an Order of the
                         Board of Immigration Appeals

                        Argued and Submitted July 6, 2020
                                Portland, Oregon

Before: BENNETT and MILLER, Circuit Judges, and PEARSON,** District
Judge.

      Alejandro Ortiz-Alfaro petitions for review of the immigration judge’s

denial of Ortiz-Alfaro’s motion for sua sponte reopening. We have jurisdiction

under 8 U.S.C. § 1252(a)(1). See Bartolome v. Sessions, 904 F.3d 803, 815 (9th

Cir. 2018). Our review is limited to determining whether the immigration judge’s


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
            The Honorable Benita Y. Pearson, United States District Judge for the
Northern District of Ohio, sitting by designation.
decision rested on “legal or constitutional error.” Bonilla v. Lynch, 840 F.3d 575,

588 (9th Cir. 2016); see 8 U.S.C. § 1252(a)(2)(D). Ortiz-Alfaro presents challenges

to both legal and discretionary determinations by the immigration judge. We deny

the petition in part and dismiss it in remaining part.

      1.     We agree with Ortiz-Alfaro that the immigration judge did not simply

exercise discretion to deny reopening because Ortiz-Alfaro had not satisfied the

standard of Matter of Beckford, 22 I. & N. Dec. 1216 (B.I.A. 2000) (en banc).

Rather, the immigration judge held that satisfying Beckford was a legal

requirement. In Beckford, the Board required a petitioner seeking sua sponte

reopening to “at a minimum . . . demonstrate a substantial likelihood that the result

in his case would be changed if reopening is granted.” Id. at 1219. The

immigration judge in the case at bar explained that “to warrant sua sponte

reopening,” Ortiz-Alfaro had to satisfy Beckford. The immigration judge then

rejected Ortiz-Alfaro’s claim because Ortiz-Alfaro had not “demonstrated a

‘substantial likelihood’ that the outcome of a reopened reasonable fear hearing

would be different.”

      But we do not agree that the immigration judge legally erred by applying the

“substantial likelihood” standard of Beckford. Ortiz-Alfaro argues that Beckford

“did not purport to hold that all motions” for sua sponte reopening “must

demonstrate a ‘substantial likelihood’” of a different outcome. We do not read


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Beckford as announcing a holding limited to its facts. The Board spoke clearly: the

“substantial likelihood” standard is a “minimum” requirement to warrant sua

sponte reopening. Beckford, 22 I. & N. Dec. at 1219. The context of Beckford

supports that reading. Among other things, the Board declined to adopt an

alternative standard, proposed by two dissenting board members, under which the

petitioner in that case showed that reopening was warranted because a failure to

reopen his case would “result in a miscarriage of justice.” Id. at 1219–20.

      We recognize that Beckford’s “substantial likelihood” standard represents a

narrowing of the “exceptional situation” test set out in Matter of J-J-, 21 I. & N.

Dec. 976 (B.I.A. 1997), and Matter of G-D-, 22 I. & N. Dec. 1132 (B.I.A. 1999).

But the government correctly notes that Ortiz-Alfaro does not argue that anything

in the statute or regulations prohibits the agency from adopting such a standard,

and indeed the regulations themselves allow nearly unfettered discretion. See 8

C.F.R. §§ 1003.2(a), 1003.23(b)(1); Ekimian v. INS, 303 F.3d 1153, 1159 (9th Cir.

2002).

      Ortiz-Alfaro does not argue in his opening brief that applying Beckford’s

“substantial likelihood” standard undercuts Ekimian’s reasoning that the

“exceptional situation” standard provides no meaningful standard for judicial

review, and we do not consider that question. See Ekimian, 303 F.3d at 1159.

Similarly, because Ortiz-Alfaro does not assert a claim under Matter of Lozada, 19


                                          3
I. & N. Dec. 637 (B.I.A. 1988), we do not consider the application of Beckford in

that context.

      Finally, to the extent that Ortiz-Alfaro argues that the immigration judge

deviated from the agency’s settled course of adjudication by applying Beckford, we

lack jurisdiction to consider that claim. See Lona v. Barr, 958 F.3d 1225, 1236–38

(9th Cir. 2020).

      2.        Ortiz-Alfaro presents three other legal arguments, which we reject.

First, the immigration judge explained that Ortiz-Alfaro’s motion was beyond the

time limit for a statutory motion to reopen. The immigration judge therefore

considered the request for sua sponte reopening on the merits. The immigration

judge did not determine that Ortiz-Alfaro’s reasonable fear proceedings could not

be reopened solely because they were time-barred, as Ortiz-Alfaro contends.

Second, the immigration judge did not find that Ortiz-Alfaro’s motion was

precluded by our prior rejection of his petition for review. Instead, the immigration

judge relied in part on that decision in declining to exercise sua sponte authority.

Third, the immigration judge did not fail to consider Ortiz-Alfaro’s imputed-

nationality claim but instead expressly considered and rejected it. Cf. Garcia v.

Holder, 621 F.3d 906, 913 (9th Cir. 2010) (an agency’s failure to exercise

discretion may constitute legal error).

      3.        Ortiz-Alfaro frames his remaining arguments as legal challenges, but


                                            4
they instead implicate the immigration judge’s exercise of discretion. For example,

Ortiz-Alfaro argues that the immigration judge should have granted reopening

because Matter of M-E-V-G-, 26 I. & N. Dec. 227 (B.I.A. 2014), constituted a

change in law that Ortiz-Alfaro should have had a chance to address before the

prior immigration judge relied on it. We lack jurisdiction to consider these claims.

See Lona, 958 F.3d at 1234–35.

      PETITION DENIED IN PART and DISMISSED IN PART.




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