Alejandro Palacios Rivera v. Jefferson Sessions, III ( 2018 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAY 17 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ALEJANDRO PALACIOS RIVERA, No. 17-71448
Petitioner, Agency No. A095-692-140
v.
MEMORANDUM*
JEFFERSON B. SESSIONS III, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted May 15, 2018**
Before: SILVERMAN, BEA, and WATFORD, Circuit Judges.
Alejandro Palacios Rivera, a native and citizen of Mexico, petitions for
review of the Board of Immigration Appeals’ order dismissing his appeal from an
immigration judge’s order pretermitting his application for cancellation of
removal. We have jurisdiction under 8 U.S.C. § 1252. We review de novo legal
*
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).
questions, including constitutional claims, and review for substantial evidence
factual findings. Hernandez-Mancilla v. Holder, 633 F.3d 1182, 1184 (9th Cir.
2011). We review for abuse of discretion the denial of a continuance. Ahmed v.
Holder, 569 F.3d 1009, 1012 (9th Cir. 2009). We deny the petition for review.
The agency properly admitted the Form I-826 Notice of Rights and Request
for Disposition, where it was probative and its admission fundamentally fair. See
Sanchez v. Holder, 704 F.3d 1107, 1109 (9th Cir. 2012). Palacios Rivera’s
contentions do not overcome the presumption that the form is reliable, where,
notwithstanding additional marks on the form, he admitted he signed the form and
opted to take administrative voluntary departure. See Espinoza v. INS, 45 F.3d 308,
310 (9th Cir. 1995) (immigration forms are presumed to be reliable absent
evidence to the contrary; “The burden of establishing a basis for exclusion of
evidence from a government record falls on the opponent of the evidence, who
must come forward with enough negative factors to persuade the court not to admit
it.”).
The agency did not abuse its discretion in denying Palacios Rivera more
than one week to review and respond to the Form I-826, where he had listed his
2005 administrative voluntary departure on his application for cancellation of
removal, which he filed roughly a year and a half prior to the continuance request.
See Ahmed, 569 F.3d at 1012 (listing factors to consider when reviewing the denial
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of a continuance, including the reasonableness of petitioner’s conduct).
Therefore, substantial evidence supports the agency’s determination that
Palacios Rivera accepted administrative voluntary departure in 2005 and was thus
unable to show 10 years of continuous physical presence to qualify for cancellation
of removal. See 8 U.S.C. § 1229b(b)(1)(A); Ibarra-Flores v. Gonzales, 439 F.3d
614, 619 (9th Cir. 2006) (voluntary departure under threat of deportation
constitutes a break in continuous physical presence). Palacios Rivera’s contentions
that he was coerced into accepting voluntary departure are not supported, where his
statement does not indicate an immigration officer provided incorrect information
or forced him into his choice. Cf. Ibarra-Flores, 439 F.3d at 619 (record did not
contain substantial evidence that the alien took voluntary departure where there
was no documentary evidence and petitioner’s testimony indicated officers gave
him incorrect and contradictory information regarding the consequences of
accepting voluntary departure).
The agency did not err or abuse its discretion in declining to hold a hearing
or grant a continuance to explore Palacios Rivera’s mental competency pursuant to
Matter of M-A-M-, 25 I. & N. Dec. 474 (BIA 2011), where the medical records he
submitted do not contain indicia of mental incompetency.
Accordingly, the record does not support Palacios Rivera’s contentions that
he was deprived of his right to a full and fair hearing, or that the cumulative effect
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of the agency’s actions amounted to a violation of his due process rights. See Lata
v. INS, 204 F.3d 1241, 1246 (9th Cir. 2000) (“To prevail on a due process
challenge to deportation proceedings, [petitioner] must show error and substantial
prejudice.”).
PETITION FOR REVIEW DENIED.
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