Jose Martinez Hernandez v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: June 8, 2023
• Docket: 18-72393
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUN 8 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

JOSE ELEAZAR MARTINEZ No. 18-72393 HERNANDEZ, AKA Jose Eleazar Hernandez Martinez, Agency No. A070-859-681

Petitioner, MEMORANDUM * v.

MERRICK B. GARLAND, Attorney General,

Respondent.

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

Submitted June 5, 2023** Pasadena, California

Before: WALLACE and OWENS, Circuit Judges, and FITZWATER,*** District Judge.

Jose Eleazar Martinez Hernandez petitions for review of the Board of

* 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 Sidney A. Fitzwater, United States District Judge for the Northern District of Texas, sitting by designation. Immigration Appeals’ (BIA) denial of his motion to sua sponte reopen proceedings.

We have jurisdiction pursuant to 8 U.S.C. § 1252. This court reviews questions of

its jurisdiction de novo. See Guerrier v. Garland, 18 F.4th 304, 308 (9th Cir. 2021).

This court has jurisdiction to review the BIA’s denial of sua sponte reopening for

legal or constitutional error. See Bonilla v. Lynch, 840 F.3d 575, 588 (9th Cir. 2016).

We dismiss the petition.

The BIA’s denial of Martinez Hernandez’s motion was not based on legal or

constitutional error. The BIA recognized and applied the appropriate standard,

exercised its discretion, and determined that Martinez Hernandez’s situation was not

exceptional. See Lona v. Barr, 958 F.3d 1225, 1235 (9th Cir. 2020) (holding that

there was no legal or constitutional error as the BIA’s “decision evinces no

misunderstanding of the agency’s broad discretion to grant or deny sua sponte

relief”); Singh v. Holder, 771 F.3d 647, 650 (9th Cir. 2014) (holding that the BIA

errs in denying sua sponte reopening where the BIA impermissibly holds that it lacks

authority to do so). Therefore, the court has no jurisdiction to review the BIA’s

exercise of its discretion, including its consideration of Martinez Hernandez’s

various avenues to obtain a provisional unlawful presence waiver or its evaluation

of the equities. See Lona, 958 F.3d at 1233; Ekimian v. I.N.S., 303 F.3d 1153, 1157–

58 (9th Cir. 2002).

PETITION DISMISSED.