UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

________________ _________________ JOSE IVAN ORTEGA-MARTINEZ, Petitioner,

v. MERRICK B. GARLAND, United States Attorney General, Respondent. No. 22-9548 (Petition for Review)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before MORITZ , EID , and ROSSMAN , Circuit Judges.

________________ _________________ Jose Ivan Ortega-Martinez, a native and c itizen of Mexico, petitions for review of the decision of the Board of Immigra tion 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. Or tega-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 appella te record, this pa nel has determined unanimously that oral argument would not ma terially 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 This order and judgment is not binding precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel. It may be cite d, however, for its persuasi ve value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### March 7, 2023 Christopher M. Wolpert Clerk of Court Appellate Case: 22-9548 Document: 010110822502 Date Filed: 03/07/2023 Page: 12 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. Orte ga-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 Un ited States citizen. He moved to remand so he could seek adjust ment of status under section 245(i) of the Immigration and Nationality Ac t, 8 U.S.C. § 1255(i), sta ting (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 grandfat hered noncitizen due to that pe tition, he is eligible to adjust his status under a new I-130 petition filed by his spouse. On November 24, 2021, the Board uphe ld the denial of CAT relief and voluntary departure. In consideri ng voluntary departure, it acknowledged Mr. Ortega-Martinez’s positive equities. But it also rec ognized that he had a “2013 conviction, at age 25, for sexua l 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 “agre e[d] with the Immigration Judge that [Mr. Ortega-Martinez] does not warrant pos t-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 petiti on had to be filed on or be fore April 30, 2001, but it showed a receipt date of May 25, 2001. Appellate Case: 22-9548 Document: 010110822502 Date Filed: 03/07/2023 Page: 23 Mr. Ortega-Martinez did not file a pet ition for review of the November 24, 2021, decision. Instead, he moved the Boar d to reconsider. The motion to reconsider did not challenge the Board’s determinati ons regarding the CA T claim or voluntary departure. Instead, it focu sed on the denial of the moti on to remand, asserting that the Board erred in assessing the filing date of his mothe r’s petition. Mr. OrtegaMartinez contended that the petition’s prior ity date, which was earlier than April 30, 2001, demonstrated he was prima facie eligible for protection under § 245(i). On June 17, 2022, the Board denied th e motion to reconsider. It assumed Mr. Ortega-Martinez was correc t about the petition date. Neve rtheless, it held he still failed to demonstrate prima fa cie eligibility for adjustment of status. “[I]n seeking a remand, the respondent must establish prima facie eligibility for re lief, and where, as here, the ultimate relief is discretionary, he must show that he wa rrants such relief as a matter of discretion.” R. Vol. 1 at 4. “Prima facie eligibili ty is shown where the evidence reveals a reasonable likelihood that the statutory requirements for relief have been satisfied and that there is a reas onable likelihood that relief will be granted in the exercise of discretion.” Id. The Board noted that Mr. Ortega-Martinez had not challenged its determination, in the November 24, 2021, decision, that he did not warrant voluntary departure in the exercise of discretion. Further, he did not “otherwise present ev idence showing a reasonable like lihood that his application for adjustment of status would be granted in th e exercise of discretion, particularly in light of his conviction for sexual battery as discussed in our November 24, 2021, decision.” Id. at 5. The Board therefore deni ed the motion to reconsider. Appellate Case: 22-9548 Document: 010110822502 Date Filed: 03/07/2023 Page: 34 DISCUSSION The only order before us for review is the June 17, 2022, denial of the motion for reconsideration, which we re view for abuse of discretion, see Zapata-Chacon v. Garland , 51 F.4th 1191, 1195 (10t h Cir. 2022). Because the underlying relief sought is adjustment of status under § 1255(i), our review is limited by 8 U.S.C. § 1252(a)(2)(B), which divests this court of jurisdiction to review “any judgment regarding the granting of relief under se ction . . . 1255.” Under § 1252(a)(2)(D), however, we retain jurisdiction to review “c onstitutional claims or questions of law.” “The Board abuses its discretion wh en it makes an error of law.” Banuelos v. Barr , 953 F.3d 1176, 1179 (10th Cir. 2020). Mr. Ortega-Martinez contends the c ourt should remand because the Board legally erred in assessing the filing date of his mother’s I-130 petition. But the filing date was the Board’s reason for denying the motion to remand , which we lack jurisdiction to review. In contrast, in denying the motion for reconsideration , the Board assumed that Mr. Ortega-Martinez wa s correct about the filing date of the petition and instead denied relief on the disc retionary aspect of the prima facie case for adjustment of status. Given that our re view is limited to the denial of the motion for reconsideration, we need not consider whether the Board erred in assessing the filing date of the I-130 petition. Mr. Ortega-Martinez raises two challenge s to the Board’s re asons for denying reconsideration. He suggest s that the Board improperly c oncluded he failed to show a reasonable likelihood of a favorable ex ercise of discretion because (1) under Appellate Case: 22-9548 Document: 010110822502 Date Filed: 03/07/2023 Page: 45 Mena-Flores v. Holder , 776 F.3d 1152 (10th Cir. 2015), the agency must “first rule on statutory eligibility before diving into discretionary determinations,” Mot. to Remand at 14, and (2) it was the task of the immigration judge, not the Board, to make the discretionary determination in the first instance. Neither argument, however, supports a remand. Mena-Flores recognized that in consideri ng adjustment of status, the immigration judge must determine whethe r the noncitizen “satisfies the eligibility requirements” (a non-discretionary determin ation) and “merits th e favorable exercise of discretion by the court” (a discretionary determination). 776 F.3d at 1161. But it did not hold that the agen cy must tackle those issu es in that order. Moreover, the Supreme Court has rec ognized “at least three independent grounds on which the BIA ma y deny a motion to reopen,” INS v. Abudu , 485 U.S. 94, 104 (1988), which also appl y to a motion to remand, see Galeano-Romero v. Barr , 968 F.3d 1176, 1186 (10th Cir. 2020) (“The same legal standa rd applies to motions to reopen and motions to remand.” (brackets a nd internal quotation marks omitted)). Two of those grounds are relevant here. The Board “may hold that the movant has not established a prima faci e case for the underlying substantive relief sought.” Abudu , 485 U.S. at 104. Also, in cases such as adjustment of status, “in which the ultimate grant of relief is disc retionary . . . the BIA may l eap ahead, as it were . . . and simply determine that even if [the two threshold con cerns] were met, the movant would not be entitled to the di scretionary grant of relief.” Id. at 105. Accordingly, we do not fault the Board for considering whether Mr. Ortega-Mar tinez established a Appellate Case: 22-9548 Document: 010110822502 Date Filed: 03/07/2023 Page: 56 prima facie case, or for leaping over the qu estion of statutory eligibility to rely on discretion in denying the mo tion for reconsideration. For these reasons, we deny the motion to remand. That leaves the conditional motion to dismiss, in which Mr. Ortega-Martin ez requests that we dismiss this matter if we deny the motion to remand. Alt hough we deny the motion to remand, we decline to grant Mr. Orte ga-Martinez’s conditional motion to dismiss.
CONCLUSION We deny the motion to remand and the motion to dismiss. Because Mr. Ortega-Martinez concedes any other challenges to the Board’s denial of reconsideration, 1 we also deny the petition for review.

Entered for the Court
Nancy L. Moritz Circuit Judge

1 Filing a motion to remand for add itional administrative proceedings “suspends the briefing schedule unless the court orders otherwise.” 10th Cir. R. 27.3(C). The motion to remand cited Rule 27.3(C). The motion to dismiss, however, disclaimed any intent to seek an extension of the br iefing schedule and indicated that Mr. Ortega-Martinez did not intend to bring any challenges to the denial of reconsideration other than the arguments in the motion to remand. Appellate Case: 22-9548 Document: 010110822502 Date Filed: 03/07/2023 Page: 6