                              NOT FOR PUBLICATION                        FILED
                    UNITED STATES COURT OF APPEALS                        JUL 24 2020
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                              FOR THE NINTH CIRCUIT

TAN NGOC BUI,                                   No.    18-72873

                Petitioner,                     Agency No. A073-276-314

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

                Respondent.

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

                               Submitted July 7, 2020**
                                 Seattle, Washington

Before: FERNANDEZ and NGUYEN, Circuit Judges, and BOULWARE, ***
District Judge.

      Tan Ngoc Bui, a native of Vietnam, petitions for review of a decision by the

Board of Immigration Appeals (“BIA”) affirming the denial by an immigration



      *
             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 Richard F. Boulware II, United States District Judge
for the District of Nevada, sitting by designation.
judge (“IJ”) of his motion to reopen sua sponte his immigration case. Bui argues

that the agency erred by denying his motion, at least in part, for lack of due

diligence and by failing to consider all factors relevant to his motion. We have

jurisdiction pursuant to 8 U.S.C. § 1252, although our jurisdiction is confined to

“the limited purpose of reviewing the reasoning behind the decisions for legal or

constitutional error.” Bonilla v. Lynch, 840 F.3d 575, 588 (9th Cir. 2016). Finding

no such error, we deny Bui’s petition.1

      1. The agency did not commit legal error when it cited Bui’s lack of

diligence as a reason for denying his motion to reopen sua sponte. The agency

cited the correct legal standard for sua sponte reopening, i.e., that the agency’s sua

sponte authority “is reserved for truly exceptional situations,” and it applied that

standard to Bui’s motion when it explicitly found that he had failed to establish

such circumstances. See id. at 585–86. The agency considered Bui’s diligence in

assessing whether he had established an exceptional situation sufficient to warrant

sua sponte reopening, but it did not supplant the “exceptional situations” test with

a novel diligence mandate. We have long recognized the breadth of the

“exceptional situations” test for sua sponte reopening, see id. at 579, 584–86, and

nothing in the governing regulation or our caselaw precludes the agency from



      1
        We also grant Bui’s motion to supplement the record on appeal. See
Lowry v. Barnhart, 329 F.3d 1019, 1024 (9th Cir. 2003).

                                           2
considering diligence as a relevant factor, see 8 C.F.R. § 1003.23(b)(1). Far from

the “total non sequitur” Bui argues it is, the movant’s diligence in seeking relief

can be relevant to the agency’s guiding principle that its sua sponte authority “is

not meant to be used as a general cure for filing defects or to otherwise circumvent

the regulations” or to be “expansively employ[ed] in a manner that . . . fail[s] to

give effect to the comprehensive regulatory structure in which it exists.” Matter of

J-J-, 21 I. & N. Dec. 976, 984 (BIA 1997); Matter of G-D-, 22 I. & N. Dec. 1132,

1134 (BIA 1999).

       We likewise find no legal error in the agency’s due diligence analysis,

assuming, as we do, that the agency intended its analysis to follow the standards

applicable to a statutory motion to reopen. In his motion to reopen, Bui did not

state the basis for his delay in seeking relief, which included several unexplained

interludes—some of which, to this day, Bui has not justified. Against that

backdrop, we cannot say that the agency misapplied its diligence doctrine to the

facts as Bui presented them.

      2. We also find no basis for reversal in Bui’s argument that the agency

failed to consider all factors relevant to his motion. Bui fails to contend with “the

presumption that the BIA [and the IJ] did review the record.” Fernandez v.

Gonzales, 439 F.3d 592, 603 (9th Cir. 2006) (rejecting the petitioner’s argument

that the BIA had failed to consider some or all of her evidence, in the context of a



                                          3
motion to reopen). We see no indication to the contrary here, and, although the

IJ’s and BIA’s orders did not discuss all of Bui’s arguments, they were not

required to do so. Id. at 603–04; see also Ekimian v. I.N.S., 303 F.3d 1153, 1157

(9th Cir. 2002) (finding no jurisdiction to review the BIA’s refusal to reopen

proceedings sua sponte even where the denial order failed to discuss various

potentially-relevant factors and “provide[d] virtually no explanation as to why the

BIA declined to exercise its sua sponte power to reopen”).

      3. To the extent Bui now argues that the agency construed his motion as

seeking reopening on both a sua sponte and statutory basis, and that it “misapplied

the due diligence standard” in denying the latter, Bui waived that argument by

failing to raise it in his opening brief. Smith v. Marsh, 194 F.3d 1045, 1052 (9th

Cir. 1999) (“[O]n appeal, arguments not raised by a party in its opening brief are

deemed waived.”). Moreover, even if Bui had properly raised that claim on

appeal, we would lack jurisdiction to adjudicate the merits nonetheless because he

did not exhaust it before the agency. Barron v. Ashcroft, 358 F.3d 674, 677–78

(9th Cir. 2004).

      PETITION DENIED.




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