Fredis Joel Martinez- Hernandez v. WILLIAM P. BARR, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
FREDIS JOEL MARTINEZ-
HERNANDEZ,
Petitioner,
v.
WILLIAM P. BARR, Attorney General,
Respondent.
No. 15-73776
Agency No. A206-022-140
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted April 17, 2019**
Before: McKEOWN, BYBEE, and OWENS, Circuit Judges.
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.
* 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).
FILED
APR 23 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

-- 1 of 2 --

2 15-73776
§ 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.

-- 2 of 2 --