Ricardo Hernandez-Martinez v. Merrick Garland ( 2023 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS FEB 23 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
RICARDO GABRIEL HERNANDEZ- No. 20-71656
MARTINEZ,
Agency No. A206-673-212
Petitioner,
v. MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted February 17, 2023**
Pasadena, California
Before: TASHIMA, HURWITZ, and BADE, Circuit Judges.
Ricardo Gabriel Hernandez-Martinez, a native and citizen of Mexico, seeks
review of a decision of the Board of Immigration Appeals (“BIA”) denying sua
sponte reopening. We generally lack jurisdiction to review a decision not to reopen
*
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).
proceedings sua sponte because it is “committed to agency discretion.” Menendez-
Gonzalez v. Barr, 929 F.3d 1113, 1116 (9th Cir. 2019). Although we may do so if
the agency relies on an erroneous constitutional or legal premise, id. at 1116–17,
Hernandez does not raise a constitutional challenge, and the BIA clearly exercised
its discretion “against the correct legal background,” Bonilla v. Lynch, 840 F.3d 575,
588 (9th Cir. 2016) (cleaned up). We therefore dismiss the petition.
The BIA correctly recognized 8 C.F.R. § 1003.2(a) as the source of its sua
sponte reopening authority, identified “an exceptional situation” as a potential
reason for sua sponte reopening, and cited precedent supporting its conclusion that
Hernandez did not present such a situation. See In re G-D-, 22 I. & N. Dec. 1132,
1133–34 (B.I.A. 1999); In re J-J-, 21 I. & N. Dec. 976, 984 (B.I.A. 1997). Nothing
in the decision suggests that the BIA “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) (cleaned up) (in the analogous context
of a motion to reconsider). Instead, after consideration of the law and facts, the BIA
concluded that Hernandez’s situation did not warrant an exercise of discretion.
Although Hernandez asserts that the BIA really denied reopening because he
failed to establish the requisite hardship for cancellation of removal, our review “is
constricted to legal or constitutional error that is apparent on the face of the BIA’s
decision.” Id. We therefore do not speculate whether the BIA might have also
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denied reopening on some other ground. Because the BIA’s decision denying sua
sponte reopening did not rely on an erroneous constitutional or legal premise, we
lack jurisdiction.
PETITION FOR REVIEW DISMISSED.
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