Unreported / Non-Citable
Background
Rosa Herlinda Ruiz-Menendez, a native and citizen of Guatemala, petitioned pro se for review of an order of the Board of Immigration Appeals denying her motion to reopen removal proceedings. The Ninth Circuit said its jurisdiction was governed by 8 U.S.C. § 1252 and that it reviews the denial of a motion to reopen for abuse of discretion. A panel of Judges Silverman, Forrest and VanDyke decided the case without oral argument and issued an unpublished memorandum disposition. The memorandum states that it is not precedent except as provided by Ninth Circuit Rule 36-3.
The memorandum does not recount the history of the removal case or the details of the underlying relief sought. It shows that the BIA had determined that Ruiz-Menendez failed to demonstrate prima facie eligibility for relief. It also shows that she pressed several other contentions in this court: materially changed country conditions in Guatemala, fear of her sister's husband, and a family-based visa petition. She also referred in her opening brief to materials outside the administrative record. The court additionally addressed the BIA's decision not to reopen the proceedings on its own motion.
The Court’s Holding
The panel denied the petition in part and dismissed it in part, and the memorandum does not say which rulings fall into which category. The court first observed that Ruiz-Menendez does not challenge the BIA's determination that she failed to demonstrate prima facie eligibility for relief, so it did not address that determination. In light of that disposition, it did not reach her contentions about materially changed country conditions, citing the principle that courts and agencies need not decide issues unnecessary to the results they reach.
The court held that her contentions about fear of her sister's husband in Guatemala and about her family-based visa petition were not properly before it because she did not raise them before the BIA. It cited the statutory requirement that administrative remedies be exhausted and noted that exhaustion is not jurisdictional but must be enforced if properly raised by a party. It also declined to consider materials mentioned in the opening brief that are not part of the administrative record.
As to sua sponte reopening, the court said it has jurisdiction to review that discretionary determination only for legal or constitutional error, and it found none underlying the BIA's decision. The practical result is that the BIA's denial of reopening stands. The court did not remand and did not decide the merits of any claim for relief, the changed-conditions argument, or the visa petition.
Key Takeaways
- A petitioner who does not challenge a BIA ruling in the opening brief should expect the Ninth Circuit not to address it, as happened with the prima facie eligibility determination here.
- Contentions that were never presented to the BIA, such as the fear of a relative by marriage and the family-based visa petition, were treated as not properly before the court under the exhaustion requirement.
- Exhaustion is not jurisdictional, but the court explained that it must be enforced if a party properly raises it.
- Materials that are not part of the administrative record will not be considered on petition for review.
- Review of the BIA's refusal to reopen sua sponte is limited to legal or constitutional error, and this memorandum is unpublished and not precedent except as Ninth Circuit Rule 36-3 allows.
Why It Matters
This memorandum is a short, non-precedential application of familiar petition-for-review rules. Its value lies in showing how several procedural limits can combine to leave a denial of reopening intact: an unchallenged agency finding, claims the agency never considered, evidence outside the record, and a narrow standard for discretionary sua sponte reopening. Because the petitioner appeared pro se, it also shows that these rules were applied without any special accommodation.
Because the disposition is unpublished, it cannot be treated as binding authority and may be cited only as Ninth Circuit Rule 36-3 permits. It also decides little on the merits. Whether Ruiz-Menendez could have shown changed country conditions or eligibility for relief was left undecided, and the court did not rule on the unexhausted fear and visa contentions. Practitioners should read it mainly as a reminder to raise every argument before the BIA and to challenge each ground of the agency's decision in the opening brief.