Gilma Cruz-Martinez v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: February 7, 2023
• Docket: 18-72497
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS FEB 7 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

GILMA LISSETH CRUZ-MARTINEZ; No. 18-72497 DANIEL LEONARDO RAMIREZ CRUZ, Agency Nos. A208-383-214 Petitioners, A208-383-215

v. MEMORANDUM* MERRICK B. GARLAND, Attorney General,

Respondent.

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

Submitted February 7, 2023** San Francisco, California

Before: FRIEDLAND, BADE, and KOH, Circuit Judges.

Petitioners Gilma Cruz-Martinez and her minor son (collectively,

“Petitioners”), natives and citizens of El Salvador, petition for review of the Board

of Immigration Appeals (“BIA”) decision in 2018 denying Petitioners’ motion to

* 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). reissue a 2017 BIA decision. We dismiss the petition for lack of jurisdiction.

The BIA treated Petitioners’ motion to reissue as a motion for sua sponte

reopening, and Petitioners do not challenge that aspect of the BIA’s decision. See

8 C.F.R. § 1003.2(a) (noting that the BIA may sua sponte “reissue [a] decision to

correct a defect in service”); cf. Coyt v. Holder, 593 F.3d 902, 904 n.1, 905-08 (9th

Cir. 2010) (treating a motion to reissue as a motion to reopen for purposes of

analyzing whether the motion remained pending despite the petitioner’s removal

from the United States); see also Singh v. Gonzales, 494 F.3d 1170, 1171-72 (9th

Cir. 2007) (treating petitioner’s request that the BIA “reissue its decision” so he

“could timely appeal” as a motion to reopen). Because Petitioners identify no legal

or constitutional error in the BIA’s refusal to exercise its sua sponte authority to

reissue its 2017 decision, we lack jurisdiction to consider the petition. See Lona v.

Barr, 958 F.3d 1225, 1234 (9th Cir. 2020) (holding that our jurisdiction to review a

denial of a motion for sua sponte reopening is “constricted to legal or constitutional

error that is apparent on the face of the BIA’s decision and does not extend to

speculating whether the BIA might have misunderstood some aspect of its

discretion”).

The temporary stay of removal remains in place until the mandate issues.

The motion for a stay of removal is otherwise denied.

Petition DISMISSED.