NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS FEB 9 2026

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

ROBERTO CARLOS FERNANDEZ- No. 21-70963

MARTINEZ,

Agency No. A206-453-571 Petitioner,

v. MEMORANDUM*

PAMELA BONDI, Attorney General,

Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals

Submitted February 5, 2026** Phoenix, Arizona

Before: BERZON, CALLAHAN, and FRIEDLAND, Circuit Judges.

Petitioner Roberto Carlos Fernandez-Martinez, a native and citizen of

Mexico, seeks review of a decision by the Board of Immigration Appeals (“BIA”)

affirming the denial by an immigration judge (“IJ”) of his applications for

cancellation of removal and for voluntary departure. We have jurisdiction under 8

* 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). U.S.C. § 1252. We deny in part and dismiss in part the petition for review.

Where, as here, the BIA cites Matter of Burbano, 20 I. & N. Dec. 872, 874

(BIA 1994), but explicitly “constrict[s] the scope of its opinion to apply to only

one ground upon which the IJ’s decision rested,” our review is limited to that

portion of the IJ’s decision. Abebe v. Gonzales, 432 F.3d 1037, 1040 (9th Cir.

2005) (en banc). And where the BIA “agree[s] with the IJ’s findings and add[s] its

own reasoning, we review both the BIA’s decision and the portions of the IJ’s

decision adopted by the BIA.” Diaz v. Bondi, 129 F.4th 546, 552 (9th Cir. 2025).

We review our jurisdiction and legal questions de novo. Id.; Taslimi v. Holder,

590 F.3d 981, 984 (9th Cir. 2010).

1. Fernandez-Martinez failed to exhaust his argument that he was not

required to supply his stepdaughter’s birth certificate to prove that she was a

qualifying relative for purposes of his cancellation of removal application.

“Exhaustion requires a non-constitutional legal claim to the court on appeal to have

first been raised in the administrative proceedings below, and to have been

sufficient to put the BIA on notice of what was being challenged.” Umana-

Escobar v. Garland, 69 F.4th 544, 550 (9th Cir. 2023) (quoting Bare v. Barr, 975

F.3d 952, 960 (9th Cir. 2020)). Fernandez-Martinez, who was represented by

counsel throughout the agency proceedings, expressly waived any reliance on his

stepdaughter as a qualifying relative before the IJ. And on appeal to the BIA,

2 Fernandez-Martinez did not argue that the IJ should have considered his

stepdaughter or that no birth certificate was required to show that she was a

qualifying relative. We accordingly deny the petition as to this claim.

2. “Although we lack jurisdiction to reweigh the agency’s exercise of

discretion in denying voluntary departure, see 8 U.S.C. § 1252(a)(2)(B)(i), we do

have jurisdiction to review ‘constitutional claims or questions of law in challenges

to denials of voluntary departure.’” Zamorano v. Garland, 2 F.4th 1213, 1221

(9th Cir. 2021) (quoting Corro-Barragan v. Holder, 718 F.3d 1174, 1177 (9th Cir.

2013)). “In exercising discretion to grant or deny requests for voluntary departure,

IJs must ‘weigh favorable and unfavorable factors,’” and remand is warranted

when there is “no indication that the IJ implicitly considered any favorable factors

in making its voluntary departure determination.” Id. at 1221-22 (quoting

Campos-Granillo v. INS, 12 F.3d 849, 852 (9th Cir. 1993)). Here, the BIA and the

IJ explicitly considered numerous favorable factors. Because Fernandez-Martinez

does not raise a question of law, but essentially contests the IJ’s “underlying

factual determination[s]” and argues that the agency did not give sufficient weight

to the favorable factors in its exercise of discretion, we lack jurisdiction to review

his claim. Wilkinson v. Garland, 601 U.S. 209, 222 (2024); see Zamorano, 2 F.4th

at 1222.

3 Petition DENIED in part; DISMISSED in part.1

1 The temporary administrative stay of removal is lifted and the motion to stay removal, Docket No. 8, is denied.

4