Unreported / Non-Citable
Background
Pelisi Foketi Fonua, a native and citizen of Tonga, petitioned pro se for review of an order of the Board of Immigration Appeals denying his motion to reopen removal proceedings. He sought reopening to apply for withholding of removal, protection under the Convention Against Torture, and cancellation of removal. The Ninth Circuit issued its memorandum on November 3, 2026, after submission without oral argument on October 27, 2026, with Judges Silverman, Forrest, and Vandyke on the panel. The court described the motion as Fonua's second.
The Board denied the motion as number-barred and untimely, reasoning that Fonua had not shown the changed country conditions in Tonga needed to pursue withholding and CAT protection. As to cancellation of removal, the Board relied on the immigration judge's dispositive finding that Fonua was ineligible for that relief because of his conviction, a finding Fonua did not address. The Board also found no ineffective assistance of prior counsel. In the court of appeals, Fonua argued that the Board ignored material evidence, that it violated due process by applying an incorrect prima facie standard, and that he was not removable.
The Court’s Holding
The court denied the petition for review. It had jurisdiction under 8 U.S.C. § 1252, reviewed the denial of a motion to reopen for abuse of discretion, and reviewed constitutional claims de novo. It held that the Board acted within its discretion in denying the second motion as number-barred and untimely. The statute allows one motion to reopen, generally filed within ninety days of the final removal order. A motion seeking withholding must rest on material changed circumstances in the country of nationality. Citing Toufighi v. Mukasey, the court found that Fonua did not show changed conditions in Tonga. That resolved the withholding and CAT portion of the motion, so the court did not reach Fonua's arguments about prima facie eligibility for that relief.
On cancellation of removal, the court held that the Board did not abuse its discretion because Fonua never addressed the immigration judge's dispositive finding that his conviction made him ineligible. Under Ramirez-Munoz v. Lynch, the Board may deny reopening when the movant fails to establish prima facie eligibility for the relief sought. The court rejected as unsupported by the record Fonua's contention that the Board failed to consider material evidence. His due process claim, that the Board applied an incorrect prima facie standard, failed for lack of prejudice. Under Colmenar v. INS, prejudice means the outcome may have been affected by the alleged violation.
The court did not address ineffective assistance of prior counsel because Fonua did not challenge the Board's determination on that point. It also held that any challenge to his removability was not properly before it, because he had not raised it before the Board in the motion to reopen and 8 U.S.C. § 1252(d)(1) requires exhaustion of administrative remedies. Citing Suate-Orellana v. Garland, the court noted that exhaustion is not jurisdictional but must be enforced when a party properly raises it. The disposition was simply: petition for review denied.
Key Takeaways
- A second motion to reopen faces the statutory one-motion limit and ninety-day deadline, so a movant seeking withholding or CAT protection generally must offer material evidence of changed conditions in the country of nationality.
- Reopening to seek cancellation of removal can be denied when the motion does not confront an earlier dispositive finding that a conviction made the applicant ineligible.
- A due process claim about the prima facie standard fails without prejudice, meaning a showing that the outcome may have been affected.
- Issues not raised to the Board in the motion to reopen, such as removability, are unexhausted, and the court will enforce exhaustion when it is properly raised even though the requirement is not jurisdictional.
- Arguments not challenged on appeal, such as the ineffective-assistance ruling, go unaddressed, and the court need not decide issues unnecessary to its result.
Why It Matters
This is an unpublished memorandum, not precedent except as provided by Ninth Circuit Rule 36-3, so it does not bind later panels. It does illustrate how the court applies settled rules on the number, timing, and changed-conditions requirements for motions to reopen. It also shows that a movant must meet each independent ground for denial, because the failure to address the immigration judge's ineligibility finding was enough to defeat reopening for cancellation of removal.
The ruling leaves the Board's denial in place. It does not decide whether Fonua could have established eligibility for withholding or CAT protection on the merits, and it does not review the ineffective-assistance determination or the underlying removability question. Nothing in the memorandum addresses a stay of removal or any further relief.