Martinez-Valencia v. Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: October 18, 2023
• Docket: 22-1541
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS OCT 18 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

JOSE ANGEL MARTINEZ-VALENCIA, No. 22-1541 Agency No. Petitioner, A088-667-359 v. MEMORANDUM* MERRICK B. GARLAND, Attorney General,

Respondent.

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

Submitted October 16, 2023** Phoenix, Arizona

Before: IKUTA, BADE, and BRESS, Circuit Judges.

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

review of the Board of Immigration Appeals’ (“BIA”) denial of his motion to

reopen and the BIA’s refusal to reopen the removal proceedings sua sponte. We

* 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). have jurisdiction under 8 U.S.C. § 1252 to review the denial of the motion to

reopen. Singh v. Ashcroft, 367 F.3d 1182, 1185 (9th Cir. 2004) (citation omitted).

And we have “jurisdiction to review Board decisions denying sua sponte reopening

for the limited purpose of reviewing the reasoning behind the decisions for legal or

constitutional error.” Bonilla v. Lynch, 840 F.3d 575, 588 (9th Cir. 2016). We

deny the petition in part and dismiss it in part.

1. The BIA did not abuse its discretion when it denied equitable tolling.

Martinez-Valencia failed to show that he was “prevented from obtaining vital

information bearing on the existence of the claim despite the exercise of all due

diligence,” or that his “ignorance of the necessary information” was “caused by

circumstances beyond [his] control.” Perez-Camacho v. Garland, 54 F.4th 597,

606 (9th Cir. 2022) (internal quotation marks and citations omitted). Indeed,

Martinez-Valencia did not seek to reopen the proceedings based upon information

that he was “prevented from obtaining”; instead, he asserted a new basis of

eligibility for relief. The BIA acted within its discretion in concluding that

Martinez-Valencia’s new circumstances failed to provide a basis for equitable

tolling.

2. We lack jurisdiction to review the portion of Martinez-Valencia’s

petition involving the BIA’s refusal to sua sponte reopen the removal proceedings.

The scope of our review “is limited to those situations where it is obvious that the

2 22-1541 agency has denied sua sponte relief not as a matter of discretion, but because it

erroneously believed that the law forbade it from exercising its discretion or that

exercising its discretion would be futile.” Lona v. Barr, 958 F.3d 1225, 1234

(9th Cir. 2020) (internal citations omitted). The BIA explained that Martinez-

Valencia’s newfound eligibility “for relief from removal after a final order has

been entered is common and does not, itself, constitute an exceptional

circumstance warranting our consideration of an untimely motion.” Accordingly,

the BIA’s decision was based “on a proper understanding of its authority to grant

[Martinez-Valencia] relief.” Bonilla, 840 F.3d at 592; see In re G-D-, 22 I. & N.

Dec. 1132, 1134–35 (B.I.A. 1999) (explaining that the BIA “must be persuaded

that the [petitioner]’s situation is truly exceptional” for it “to exercise [its] sua

sponte authority to reopen”). Because the BIA “exercise[d] its broad discretionary

authority . . . against the correct legal backdrop,” Bonilla, 840 F.3d at 579, we lack

jurisdiction to review the Board’s denial.1

PETITION DENIED IN PART AND DISMISSED IN PART.

1 Martinez-Valencia’s motion to substitute his reply brief is granted. The reply brief filed on July 11, 2023 is substituted in place of the reply brief filed on July 6, 2023.

3 22-1541