Juan Manuel Monay-Martinez v. MERRICK B. GARLAND, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JUAN MANUEL MONAY-MARTINEZ,
Petitioner,
v.
MERRICK B. GARLAND, Attorney
General,
Respondent.
No. 18-71695
Agency No. A075-469-859
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted February 21, 2023 **
Before: OWENS, LEE, and BUMATAY, Circuit Judges.
Juan Manuel Monay-Martinez, a native and citizen of Mexico, petitions pro
se for review of an order from the Board of Immigration Appeals dismissing his
appeal of an Immigration Judge’s (IJ) denial of his application for cancellation of
removal and voluntary departure. We generally lack jurisdiction to review these
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The panel unanimously concludes that this case is suitable for
decision without oral argument. See Fed. R. App. P. 34(a)(2).
FILED
FEB 24 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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discretionary agency determinations, but we retain jurisdiction over “constitutional
claims or questions of law.” 8 U.S.C. §§ 1252(a)(2)(B), (D). Accordingly, we have
jurisdiction over Monay-Martinez’s claim that the agency denied him an attorney
because it sounds in due process. See Sanchez-Cruz v. INS, 255 F.3d 775, 779–80
(9th Cir. 2001). However, we ultimately deny his petition for review.
A petitioner must exhaust a due process claim based on deprivation of counsel
by raising it before the BIA. Sola v. Holder, 720 F.3d 1134, 1135–36 (9th Cir. 2013);
Barron v. Ashcroft, 358 F.3d 674, 678 (9th Cir. 2004). However, this court does not
assess exhaustion “in a formalistic manner,” particularly where the petitioner is pro
se. Ren v. Holder, 648 F.3d 1079, 1083 (9th Cir. 2011) (quoting Figueroa v.
Mukasey, 543 F.3d 487, 492 (9th Cir. 2008)). Although the administrative record
does not contain the brief that Monay-Martinez filed with the BIA, we conclude that
Monay-Martinez exhausted his claim by raising his lack of counsel in his notice of
appeal to the BIA. See id. at 1084.
Still, Monay-Martinez’s claim fails on the merits. The record shows that the
IJ gave Monay-Martinez time to find an attorney and obtained his medical records
to ensure that he was competent to represent himself before finally determining that
he waived his right to counsel. No record evidence suggests that the agency denied
Monay-Martinez access to counsel. Therefore, we deny his petition for review.
DENIED.

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