Martinez Ortiz v. Blanche
CourtCourt of Appeals for the Ninth Circuit
Date FiledOctober 29, 2026
Docket22-1170
StatusUnpublished
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Full Opinion
NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS OCT 29 2026
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
FRANCISCO MARTINEZ ORTIZ, No. 22-1170
Agency No.
Petitioner, A087-902-055
v.
MEMORANDUM*
TODD BLANCHE, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted October 22, 2026**
San Francisco, California
Before: FORREST and TUNG, Circuit Judges, and COLLINS, District Judge.***
Petitioner Francisco Javier Martinez Ortiz, a citizen of Mexico, petitions for
review of the Board of Immigration Appeals’ (BIA) decision denying his 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).
***
The Honorable Raner C. Collins, United States District Judge for the
District of Arizona, sitting by designation.
reopen removal proceedings. We have jurisdiction under 8 U.S.C. § 1252, and we
deny the petition.
We review the BIA’s denial of a motion to reopen for an abuse of discretion,
leaving it “undisturbed unless it is arbitrary, irrational, or contrary to law.” Sarkar v.
Garland, 39 F.4th 611, 621 (9th Cir. 2022) (internal quotation marks and citation
omitted).
1. Jurisdiction. We generally cannot review “any judgment regarding the
granting of relief” under 8 U.S.C. § 1229b(b), 8 U.S.C. § 1252(a)(2)(B)(i), but there
is an exception for “constitutional claims or questions of law,” id. § 1252(a)(2)(D).
“A ruling by the BIA that the facts do not meet the legal requirements of a particular
procedural statute or regulation is a ‘question of law’” that we may review. Lemus-
Escobar v. Bondi, 158 F.4th 944, 963 (9th Cir. 2025) (quoting Wilkinson v. Garland,
601 U.S. 209, 225 (2024)) (internal quotation omitted).
Martinez Ortiz advanced a colorable legal challenge concerning whether the
BIA applied the correct burden of proof in assessing his evidence, and thus we have
jurisdiction to consider his petition.
2. Motion to Reopen Standard. Martinez Ortiz sought to reopen his
removal proceedings based on new, previously unavailable evidence. To succeed,
the petitioner must present evidence that “is material and was not available and could
not have been discovered or presented at the former hearing.” 8 C.F.R.
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§ 1003.2(c)(1); Najmabadi v. Holder, 597 F.3d 983, 986 (9th Cir. 2010). But even
if new evidence is presented, reopening may be denied if the petitioner fails to
“establish a prima facie case for the relief sought.” Najmabadi, 597 F.3d at 986.
The BIA denied Martinez Ortiz’s motion. It explained that the “new evidence
relating to [his] son itself does not establish a prima facie case for exceptional and
extremely unusual hardship.” It also explained that the evidence was “insufficient to
demonstrate that the decision in this case would likely change if reopening is
granted.” The would-likely-change-the-result standard does not govern the prima
facie inquiry. As we clarified in Fonseca-Fonseca, that standard applies only to
decisions made on discretionary grounds and the lower reasonable-likelihood-of-
success standard that Martinez Ortiz presses applies when assessing whether a
petitioner has established prima facie eligibility for relief. 76 F.4th 1176, 1181–82
(9th Cir. 2023). But assuming that the BIA applied the wrong standard, this error
was harmless “unless there is a showing of prejudice to the petitioner.” Zamorano v.
Garland, 2 F.4th 1213, 1228 (9th Cir. 2021) (internal quotation marks and citation
omitted).
Here, there is no showing of prejudice. Applying a higher evidentiary
standard than the law requires in denying a motion to reopen can be prejudicial to
the petitioner, but the BIA determined that Martinez Ortiz was not entitled to
reopening even under the correct reasonable-likelihood standard. After discussing
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the record evidence, the BIA concluded that Martinez Ortiz “has not established that
a particular change has occurred that would cause his son hardship, to now be
considered ‘exceptional and extremely unusual.’” This definitive statement is not
couched in the “would likely change” framing. For that reason, we decline to remand
for the agency to apply the correct standard because it has already expressed its
judgment on the material issue. See Orlando Ventura, 537 U.S. at 16 (explaining
that remand is proper when the agency has not “reached its own conclusions”); Singh
v. Barr, 935 F.3d 822, 827 (9th Cir. 2019) (holding that “we need not remand”
because “neither the result nor the BIA’s basic reasoning would change” upon
applying the correct standard).
3. Cancellation of Removal. To obtain cancellation of removal, the
petitioner must “establish[] that removal would result in exceptional and extremely
unusual hardship” to a qualifying relative. 8 U.S.C. § 1229b(b)(1)(D). For a hardship
to meet this standard, it must be “out of the ordinary and exceedingly uncommon,
and must deviate, in the extreme, from the norm.” Gonzalez-Juarez v. Bondi, 137
F.4th 996, 997 (9th Cir. 2025). The BIA “must consider a range of factors, including
the age and health of the qualifying family member” and weigh the factors “in the
aggregate.” Wilkinson, 601 U.S. at 215 (internal quotations removed).
In support of his motion to reopen, Martinez Ortiz submitted an evaluation
from a marriage and family therapist regarding his son’s mental health struggles, his
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son’s Individualized Education Program set up by his school, and a declaration from
his son and himself. Martinez Ortiz also reiterated that his daughter had made two
suicide attempts. The BIA properly considered and weighed the evidence, and its
conclusion that Martinez Ortiz failed to demonstrate a change that established a
qualifying hardship is not “arbitrary, irrational, or contrary to law.” Sarkar, 39 F.4th
at 621.
PETITION DENIED.1
1
The temporary stay ordered in this case (Dkt. 9) is terminated.
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