JOSE ELEAZAR MARTINEZ HERNANDEZ, AKA Jose Eleazar Hernandez Martinez v. MERRICK B. GARLAND, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOSE ELEAZAR MARTINEZ
HERNANDEZ, AKA Jose Eleazar
Hernandez Martinez,
Petitioner,
v.
MERRICK B. GARLAND, Attorney
General,
Respondent.
No. 18-72393
Agency No. A070-859-681
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted June 5, 2023**
Pasadena, California
Before: WALLACE and OWENS, Circuit Judges, and FITZWATER,*** District
Judge.
Jose Eleazar Martinez Hernandez petitions for review of the Board of
* 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 Sidney A. Fitzwater, United States District Judge for
the Northern District of Texas, sitting by designation.
FILED
JUN 8 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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Immigration Appeals’ (BIA) denial of his motion to sua sponte reopen proceedings.
We have jurisdiction pursuant to 8 U.S.C. § 1252. This court reviews questions of
its jurisdiction de novo. See Guerrier v. Garland, 18 F.4th 304, 308 (9th Cir. 2021).
This court has jurisdiction to review the BIA’s denial of sua sponte reopening for
legal or constitutional error. See Bonilla v. Lynch, 840 F.3d 575, 588 (9th Cir. 2016).
We dismiss the petition.
The BIA’s denial of Martinez Hernandez’s motion was not based on legal or
constitutional error. The BIA recognized and applied the appropriate standard,
exercised its discretion, and determined that Martinez Hernandez’s situation was not
exceptional. See Lona v. Barr, 958 F.3d 1225, 1235 (9th Cir. 2020) (holding that
there was no legal or constitutional error as the BIA’s “decision evinces no
misunderstanding of the agency’s broad discretion to grant or deny sua sponte
relief”); Singh v. Holder, 771 F.3d 647, 650 (9th Cir. 2014) (holding that the BIA
errs in denying sua sponte reopening where the BIA impermissibly holds that it lacks
authority to do so). Therefore, the court has no jurisdiction to review the BIA’s
exercise of its discretion, including its consideration of Martinez Hernandez’s
various avenues to obtain a provisional unlawful presence waiver or its evaluation
of the equities. See Lona, 958 F.3d at 1233; Ekimian v. I.N.S., 303 F.3d 1153, 1157–
58 (9th Cir. 2002).
PETITION DISMISSED.

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