Jose Martinez-Valencia v. William Barr

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 8, 2020
• Docket: 18-71163
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS DEC 8 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

JOSE ANGEL MARTINEZ-VALENCIA, Nos. 18-71163 19-71360 Petitioner, Agency No. A088-667-359 v.

WILLIAM P. BARR, Attorney General, MEMORANDUM*

Respondent.

On Petition for Review of Orders of the Board of Immigration Appeals

Submitted December 2, 2020**

Before: WALLACE, CLIFTON, and BRESS, Circuit Judges.

Jose Angel Martinez-Valencia, a native and citizen of Mexico, petitions for

review of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal

from an immigration judge’s (“IJ”) decision denying his application for

cancellation of removal (petition No. 18-71163), and the BIA’s order denying his

motion to reconsider and terminate (petition No. 19-71360). Our jurisdiction is

* 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). governed by 8 U.S.C. § 1252. We review for abuse of discretion the denial of a

motion to reconsider. Mohammed v. Gonzales, 400 F.3d 785, 791 (9th Cir. 2005).

In petition No. 18-71163, we dismiss in part and deny in part the petition for

review. In petition No. 19-71360, we deny the petition for review.

As to petition No. 18-71163, we lack jurisdiction to review the denial of

cancellation of removal based on the discretionary determination that Martinez-

Valencia failed to show exceptional and extremely unusual hardship to his

qualifying relatives. See 8 U.S.C. § 1252(a)(2)(B); Martinez-Rosas v. Gonzales,

424 F.3d 926, 930 (9th Cir. 2005). Martinez-Valencia has not raised a colorable

constitutional or legal claim over which we retain jurisdiction. See 8 U.S.C.

§ 1252(a)(2)(D), Martinez-Rosas, 424 F.3d at 930; see also Najmabadi v. Holder,

597 F.3d 983, 990 (9th Cir. 2010) (the BIA need not write an exegesis on every

contention).

We also lack jurisdiction over Martinez-Valencia’s contention that the IJ

failed to serve as an impartial adjudicator because he did not raise this claim before

the BIA. See Barron v. Ashcroft, 358 F.3d 674, 678 (9th Cir. 2004) (requiring

exhaustion of a procedural error that could be corrected by the BIA); see also

De Mercado v. Mukasey, 566 F.3d 810, 815 n.4 (9th Cir. 2009) (claim that IJ failed

to serve as an impartial adjudicator and denied petitioner a full and fair hearing

was unreviewable because it was not raised to the BIA). We reject as unsupported

2 18-71163 & 19-71360 by the record Martinez-Valencia’s claim that the BIA violated his right to due

process.

As to petition No. 19-71360, Martinez-Valencia waived any challenge to the

BIA’s determination that his motion to reconsider was untimely. See Lopez-

Vasquez v. Holder, 706 F.3d 1072, 1079-80 (9th Cir. 2013) (issues not specifically

raised and argued in a party’s opening brief are waived).

The BIA did not abuse its discretion in denying Martinez-Valencia’s motion

to remand and terminate proceedings, where his contentions that the immigration

judge lacked jurisdiction over his proceedings are foreclosed by Karingithi v.

Whitaker, 913 F.3d 1158, 1159 (9th Cir. 2019) and Aguilar Fermin v. Barr, 958

F.3d 887, 895 (9th Cir. 2020). We reject as unsupported by the record Martinez-

Valencia’s contention that the BIA violated his right to due process.

As stated in the court’s July 25, 2018 order, the temporary stay of removal

remains in place until issuance of the mandate.

NO. 18-71163: PETITION FOR REVIEW DISMISSED in part;

DENIED in part.

NO. 19-71360: PETITION FOR REVIEW DENIED.

3 18-71163 & 19-71360