Jose Martinez-Valencia v. William Barr ( 2020 )

NOT FOR PUBLICATION FILED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