Gilma Cruz-Martinez v. Merrick Garland

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS FEB 7 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT GILMA LISSETH CRUZ-MARTINEZ; No. 18-72497 DANIEL LEONARDO RAMIREZ CRUZ, Agency Nos. A208-383-214 Petitioners, A208-383-215 v. MEMORANDUM* MERRICK B. GARLAND, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted February 7, 2023** San Francisco, California Before: FRIEDLAND, BADE, and KOH, Circuit Judges. Petitioners Gilma Cruz-Martinez and her minor son (collectively, “Petitioners”), natives and citizens of El Salvador, petition for review of the Board of Immigration Appeals (“BIA”) decision in 2018 denying Petitioners’ motion to * 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). reissue a 2017 BIA decision. We dismiss the petition for lack of jurisdiction. The BIA treated Petitioners’ motion to reissue as a motion for sua sponte reopening, and Petitioners do not challenge that aspect of the BIA’s decision. See 8 C.F.R. § 1003.2(a) (noting that the BIA may sua sponte “reissue [a] decision to correct a defect in service”); cf. Coyt v. Holder, 593 F.3d 902, 904 n.1, 905-08 (9th Cir. 2010) (treating a motion to reissue as a motion to reopen for purposes of analyzing whether the motion remained pending despite the petitioner’s removal from the United States); see also Singh v. Gonzales, 494 F.3d 1170, 1171-72 (9th Cir. 2007) (treating petitioner’s request that the BIA “reissue its decision” so he “could timely appeal” as a motion to reopen). Because Petitioners identify no legal or constitutional error in the BIA’s refusal to exercise its sua sponte authority to reissue its 2017 decision, we lack jurisdiction to consider the petition. See Lona v. Barr, 958 F.3d 1225, 1234 (9th Cir. 2020) (holding that our jurisdiction to review a denial of a motion for sua sponte reopening is “constricted to legal or constitutional error that is apparent on the face of the BIA’s decision and does not extend to speculating whether the BIA might have misunderstood some aspect of its discretion”). The temporary stay of removal remains in place until the mandate issues. The motion for a stay of removal is otherwise denied. Petition DISMISSED. 2