Jose Martinez v. Merrick Garland ( 2021 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS OCT 19 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOSE OSMIN MARTINEZ, No. 16-73046
Petitioner, Agency No. A073-916-149
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted October 12, 2021**
Before: TALLMAN, RAWLINSON, and BUMATAY, Circuit Judges.
Jose Osmin Martinez, a native and citizen of El Salvador, petitions for
review of the Board of Immigration Appeals’ (“BIA”) order denying his motion to
reopen removal proceedings. Our jurisdiction is governed by 8 U.S.C. § 1252. We
review for abuse of discretion the BIA’s denial of a motion to reopen. Bonilla v.
*
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).
Lynch, 840 F.3d 575, 581 (9th Cir. 2016). We deny in part and dismiss in part the
petition for review.
The BIA did not abuse its discretion in denying as untimely Martinez’s
motion to reopen proceedings as to his application for cancellation of removal
where it was filed more than three years after the order of removal became final
and he did not establish a statutory or regulatory exception to the time limitation or
that equitable tolling is warranted. See 8 U.S.C. § 1229a(c)(7)(C)(i)-(ii) (providing
an exception to the ninety-day deadline for asylum and withholding of removal
claims); 8 C.F.R. § 1003.2(c)(3) (same); Avagyan v. Holder, 646 F.3d 672, 679
(9th Cir. 2011) (listing factors relevant to the inquiry of whether due diligence is
demonstrated as required for equitable tolling).
The BIA also did not abuse its discretion in denying as untimely Martinez’s
motion to reopen to apply for asylum and related relief based on changed country
conditions where he failed to establish prima facie eligibility for the relief sought.
See 8 C.F.R. § 1003.2(c)(2), (3)(ii); Ramirez-Munoz v. Lynch, 816 F.3d 1226, 1228
(9th Cir. 2016) (the BIA may deny a motion to reopen for failure to establish prima
facie eligibility for the relief sought).
We reject as unsupported by the record Martinez’s contentions that the BIA
failed to consider evidence, failed to sufficiently explain its decision, applied an
incorrect standard, or otherwise erred in its analysis of his motion.
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We lack jurisdiction to review the agency’s decision not to reopen removal
proceedings sua sponte where Martinez does not raise a colorable legal or
constitutional error to invoke our jurisdiction. See Bonilla, 840 F.3d at 588
(“[T]his court has 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.”)
Finally, we lack jurisdiction to address Martinez’s contentions concerning
alleged defects in his prior proceedings before the immigration judge. See Singh v.
Lynch, 835 F.3d 880, 882 (9th Cir. 2016) (“A petition for review must be filed not
later than 30 days after the date of the final order of removal. This deadline is
mandatory and jurisdictional.” (citation and internal quotation marks omitted)).
The temporary stay of removal remains in place until issuance of the
mandate.
PETITION FOR REVIEW DENIED in part; DISMISSED in part.
3 16-73046