Fernando Martinez Hernandez v. MERRICK B. GARLAND, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
FERNANDO MARTINEZ HERNANDEZ,
Petitioner,
v.
MERRICK B. GARLAND, Attorney
General,
Respondent.
No. 22-1635
Agency No.
A216-143-476
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted October 6, 2023**
Las Vegas, Nevada
Before: RAWLINSON and OWENS, Circuit Judges, and PREGERSON, District
Judge.***
Fernando Martinez Hernandez, a native and citizen of Mexico, petitions for
review of the Board of Immigration Appeals’ (“BIA”) decision summarily
* 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).
*** The Honorable Dean D. Pregerson, United States District Judge for
the Central District of California, sitting by designation.
FILED
OCT 11 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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dismissing his appeal of the immigration judge’s (“IJ”) decision denying his
application for cancellation of removal. “We review for abuse of discretion the
BIA’s summary dismissal of an appeal.” Nolasco-Amaya v. Garland, 14 F.4th
1007, 1012 (9th Cir. 2021). “But whether the summary dismissal violated a
petitioner’s due process rights is a question of law that we review de novo.” Id.
As the parties are familiar with the facts, we do not recount them here. We deny
the petition for review.
The BIA summarily dismissed Martinez Hernandez’s appeal on the grounds
that his notice of appeal failed to meaningfully apprise the BIA of the reasons for
his challenge to the IJ’s decision and he failed to file a separate written brief or
statement after he checked the box on his notice of appeal indicating that he
intended to do so. See 8 C.F.R. § 1003.1(d)(2)(i)(A), (E). Martinez Hernandez
argues that the BIA’s summary dismissal violated his due process rights because
his pro se notice of appeal, construed liberally, was sufficiently specific to apprise
the BIA of the issue challenged on appeal. See Nolasco-Amaya, 14 F.4th at 1013
(“Although we have applied consistently the BIA’s strict specificity requirement,
we also construe liberally claims raised by pro se petitioners before the BIA.”).
However, even if the BIA violated Martinez Hernandez’s due process rights
by summarily dismissing his appeal, Martinez Hernandez failed to discuss in his
opening brief how he was prejudiced by the dismissal. See Grigoryan v. Barr, 959

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F.3d 1233, 1240 (9th Cir. 2020) (To prevail on a due process claim, the petitioner
must show “substantial prejudice,” i.e., that “the outcome of the proceeding may
have been affected by the alleged violation.” (citation omitted)); Singh v. Ashcroft,
361 F.3d 1152, 1157 n.3 (9th Cir. 2004) (“Issues not raised in an appellant’s
opening brief are typically deemed waived.”).
PETITION DENIED.

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