MARTINEZ HERNANDEZ v. BARR (2019)

MEMORANDUM **

Fredis Joel Martinez-Hernandez, a native and citizen of El Salvador, petitions for review of the Board of Immigration Appeals’ order denying his appeal from an immigration judge’s decision denying his motion to reopen removal proceedings conducted in absentia. Our jurisdiction is governed by 8 U.S.C. § 1252. We review for abuse of discretion the denial of a motion to reopen and review de novo questions of law. Mohammed v. Gonzales, 400 F.3d 785, 791-92 (9th Cir. 2005). We deny in part and dismiss in part the petition for review.

The agency did not abuse its discretion in denying Martinez-Hernandez’s motion to reopen, where he has not shown that his failure to appear at his hearing was due to circumstances beyond his control. See 8 U.S.C. § 1229a(b)(5)(C)(i), (e)(i) (exceptional circumstances warranting reopening of an in absentia removal order must be beyond the control of the alien). We lack jurisdiction to consider Martinez-Hernandez’s unexhausted contention that the agency erred in not considering his fear of returning to El Salvador in its analysis. See Tijani v. Holder, 628 F.3d 1071, 1080 (9th Cir. 2010) (“We lack jurisdiction to review legal claims not presented in an alien’s administrative proceedings before the BIA.”).

Martinez-Hernandez’s motion to remand (Docket Entry No. 48) is denied. See Karingithi v. Whitaker, 913 F.3d 1158, 1160-62 (9th Cir. 2019) (initial notice to appear need not include time and date information to vest jurisdiction in the immigration court).

PETITION FOR REVIEW DENIED in part; DISMISSED in part.