Justina Alejandra Bazan- Martinez v. MERRICK B. GARLAND, United States Attorney General

UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
_________________________________
JUSTINA ALEJANDRA BAZAN-
MARTINEZ,
Petitioner,
v.
MERRICK B. GARLAND, United States
Attorney General,
Respondent.
No. 21-9556
(Petition for Review)
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before MATHESON, BRISCOE, and PHILLIPS, Circuit Judges.
_________________________________
On February 19, 2019, the Board of Immigration Appeals (“BIA”) denied as
untimely Justina Alejandra Bazan-Martinez’s appeal from an immigration judge’s denial
of her application for cancellation of removal. Thirty-one days later, on March 22, 2019,
Ms. Bazan-Martinez filed her first motion to reconsider the BIA’s dismissal of her
untimely appeal. On October 6, 2020, the BIA denied the motion as time-barred under
* After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
FILED
United States Court of Appeals
Tenth Circuit
November 16, 2021
Christopher M. Wolpert
Clerk of Court
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8 C.F.R. § 1003.2(b)(2) (motion to reconsider must be filed with the BIA within thirty
days after mailing of the BIA decision).1
On November 3, 2020, Ms. Bazan-Martinez filed a second motion to reconsider,
asking the BIA to reconsider its October 6, 2020 denial of her first motion for reconsider.
On May 19, 2021, the BIA denied the motion for two reasons. First, it explained that an
individual “may file only one motion to reconsider a decision that he or she is removable
from the United States.” AR at 3 (citing 8 U.S.C. § 1229a(c)(6)(A); 8 C.F.R.
§§ 1003.2(b)(2) and 1003.23(b)(1)). Second, it determined that Ms. Bazan-Martinez was
seeking “reconsideration of an order denying a previous motion to reconsider,” which it
stated is prohibited under 8 C.F.R. §§ 1003.2(b)(2) and 1003.23(b)(1). Id.
Ms. Bazan-Martinez, proceeding pro se, timely filed this petition asking this court
to review only the BIA’s order denying her second (November 3, 2020) motion to
reconsider.2
We review the BIA’s denial of a motion to reconsider for an abuse of discretion.
See Belay-Gebru v. I.N.S., 327 F.3d 998, 1000 n.5 (10th Cir. 2003). Ms. Bazan-
Martinez’s second motion to reconsider sought reconsideration of the BIA’s denial of her
first motion to reconsider. But a party “may not seek reconsideration of a [BIA] decision
1 The BIA also explained that even if it reached the merits of the motion to
reconsider, it would deny the motion because “it [did] not assert any error of fact or
law in the Board’s decision.” AR at 27.
2 Because Ms. Bazan-Martinez proceeds pro se, “we liberally construe [her]
filings, but we will not act as [her] advocate.” Hooks v. Atoki, 983 F.3d 1193, 1196
n.1 (10th Cir. 2020) (quotations omitted).
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denying a previous motion to reconsider.” 8 C.F.R. § 1003.2(b)(2). The BIA therefore
did not abuse its discretion in denying the second motion to reconsider.3
Exercising jurisdiction under 8 U.S.C. § 1252, we deny the petition.
Entered for the Court
Scott M. Matheson, Jr.
Circuit Judge
3 Ms. Bazan-Martinez’s brief addresses issues that arose prior to and are not
addressed in the BIA’s May 19, 2021 decision denying her second motion to reconsider,
but we lack jurisdiction to consider them because Ms. Bazan-Martinez did not timely
seek review of those issues. See Belay-Gebru, 327 F.3d at 1000. We have jurisdiction
only to consider whether the BIA abused its discretion when it denied Ms. Bazan-
Martinez’s second motion to reconsider.
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