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


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  •                               NOT FOR PUBLICATION                        FILED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
    2                                  17-71448
    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
    3                                    17-71448
    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.
    4                                   17-71448