Appellate Case: 22-9548 Document: 010110822502 Date Filed: 03/07/2023 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit FOR THE TENTH CIRCUIT March 7, 2023 _________________________________ Christopher M. Wolpert Clerk of Court JOSE IVAN ORTEGA-MARTINEZ, Petitioner, v. No. 22-9548 (Petition for Review) MERRICK B. GARLAND, United States Attorney General, Respondent. _________________________________ ORDER AND JUDGMENT* _________________________________ Before MORITZ, EID, and ROSSMAN, Circuit Judges. _________________________________ Jose Ivan Ortega-Martinez, a native and citizen of Mexico, petitions for review of the decision of the Board of Immigration Appeals (Board or BIA) denying his motion to reconsider its earlier denial of a motion to remand. Before this court, rather than filing an opening brief, Mr. Ortega-Martinez filed a motion to remand and then a conditional motion to dismiss, both of which the Attorney General opposed. * After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. Appellate Case: 22-9548 Document: 010110822502 Date Filed: 03/07/2023 Page: 2 Exercising jurisdiction under 8 U.S.C. § 1252, we deny both motions, and we deny the petition for review. BACKGROUND An immigration judge denied Mr. Ortega-Martinez relief under the Convention Against Torture (CAT) and post-conclusion voluntary departure. While that decision was on appeal before the Board, Mr. Ortega-Martinez married a United States citizen. He moved to remand so he could seek adjustment of status under section 245(i) of the Immigration and Nationality Act, 8 U.S.C. § 1255(i), stating (1) his mother was the beneficiary of an approved I-130 petition; (2) he is a derivative beneficiary of that petition; and (3) as a grandfathered noncitizen due to that petition, he is eligible to adjust his status under a new I-130 petition filed by his spouse. On November 24, 2021, the Board upheld the denial of CAT relief and voluntary departure. In considering voluntary departure, it acknowledged Mr. Ortega-Martinez’s positive equities. But it also recognized that he had a “2013 conviction, at age 25, for sexual battery against a 15 year old.” R. Vol. 1 at 10. Like the immigration judge, the Board considered that conviction to weigh heavily against the positive factors, and ultimately it “agree[d] with the Immigration Judge that [Mr. Ortega-Martinez] does not warrant post-conclusion voluntary departure in the exercise of discretion.” Id. The Board also denied the motion to remand, stating that Mr. Ortega-Martinez had not shown prima facie eligibility for relief under § 245(i) because his mother’s I-130 petition had to be filed on or before April 30, 2001, but it showed a receipt date of May 25, 2001. 2 Appellate Case: 22-9548 Document: 010110822502 …
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