Gregorio Ventura-Flores v. Merrick Garland ( 2022 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS FEB 17 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
GREGORIO CORAZON VENTURA- No. 19-71179
FLORES, AKA Flores Genaro Alejandro,
AKA Jorge Flores, Agency No. A208-308-144
Petitioner,
MEMORANDUM*
v.
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted February 15, 2022**
San Francisco, California
Before: GOULD and RAWLINSON, Circuit Judges, and ADELMAN,*** District
Judge.
Petitioner Gregorio Corazon Ventura-Flores seeks review of a decision by
*
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).
***
The Honorable Lynn S. Adelman, United States District Judge for the
Eastern District of Wisconsin, sitting by designation.
the Board of Immigration Appeals (“BIA”) affirming the Immigration Judge’s
denial of his application for cancellation of removal. The BIA affirmed the
Immigration Judge’s finding that Ventura-Flores was ineligible for cancellation of
removal pursuant to section 240A(b) of the Immigration and Nationality Act
(“INA”), 8 U.S.C. § 1229b(b)(1)(A)–(D). Specifically, Ventura-Flores failed to
establish that he has not been convicted of a crime of domestic violence, which
disqualifies an application for cancellation of removal. See § 1229b(b)(1)(C); §
1227(a)(2)(E)(i).
Ventura-Flores is a native and citizen of Mexico who entered the United
States in 2003 without admission or parole. The Department of Homeland
Security (“DHS”) started removal proceedings against him in 2016. Ventura-
Flores admitted the factual allegations against him and conceded removability. He
sought cancellation of removal or, in the alternative, voluntary departure.
DHS submitted a criminal record (“rap sheet”) obtained from the Federal
Bureau of Investigation (“FBI”) which had Ventura-Flores’s fingerprints. The rap
sheet contained convictions for an individual with a different name and birth date
than that in his application for cancellation of removal: “Jorge Flores” with a birth
date of May 22, 1973, in the rap sheet, and “Gregorio Corazon Ventura-Flores”
with a birth date of May 25, 1972, in his application for cancellation of removal.
The convictions in the rap sheet included a state court conviction from 2000 for
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willful infliction of corporal injury to spouse or cohabitant, in violation of
California Penal Code § 273.5(a). We have held that a violation of CPC § 273.5(a)
is categorically a crime of domestic violence and disqualifies a noncitizen from
being eligible for cancellation of removal. Carrillo v. Holder, 781 F.3d 1155,
1159–60 (9th Cir. 2015).
The Immigration Judge denied Ventura-Flores’s application for cancellation
of removal. At the hearing, Ventura-Flores’s attorney conceded that “because of
the fingerprints” the rap sheet “is not contestable,” and he had no other objections
to its admission.
The BIA dismissed Ventura-Flores’s appeal of the Immigration Judge’s
decision, concluding that “the record contains evidence from which a reasonable
factfinder could conclude” that Ventura-Flores was convicted of violating CPC §
273.5(a) and consequently was ineligible for cancellation of removal. In reaching
this conclusion, the BIA, like the Immigration Judge, emphasized that the name
listed on the rap sheet matched one of Ventura-Flores’s known aliases, the rap
sheet was procured through a fingerprint-based FBI file number, and the name and
birth date, while different from what was on Ventura-Flores’s application for
cancellation of removal, matched those in the records he provided for a different
conviction as part of his application. Emphasizing that the burden of proving
eligibility for cancellation of removal is Ventura-Flores’s to bear, the BIA rejected
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his argument that it was impossible for him to prove the absence of a disqualifying
conviction because California had destroyed the state court records for the
conviction at issue.
Ventura-Flores filed this petition for review, alleging that the BIA denied
him due process by relying on the FBI rap sheet even though the identity on the rap
sheet differed from that in his application and the state records for the conviction
were destroyed. We generally lack jurisdiction to review the BIA’s denials of
discretionary relief but retain jurisdiction to review questions of law. See 8 U.S.C.
§ 1252(a)(2)(D); Bonilla v. Lynch, 840 F.3d 575 (9th Cir. 2016).
1. The BIA did not err in concluding that Ventura-Flores was ineligible for
cancellation of removal. The rap sheet was properly admitted pursuant to 8 C.F.R.
§ 1003.41(d) and contains sufficient indicia of reliability. See Sinotes-Cruz v.
Gonzales, 468 F.3d 1190, 1196 (9th Cir. 2006); Padilla-Martinez v. Holder, 770
F.3d 825, 833 (9th Cir. 2014). DHS confirmed the rap sheet was acquired using
Ventura-Flores’s fingerprints and associated FBI number. Though it contained a
different name and birth date from what Ventura-Flores provided in his application
for cancellation of removal, it matched the name and birth date in the documents
he provided with his application, and he included the other name as a known alias
in his application. As the BIA found, this evidence could lead a reasonable
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factfinder to conclude that Ventura-Flores was convicted of the offense contained
in the rap sheet.
2. The BIA did not err in concluding that the burden of proving eligibility
for cancellation of removal falls on Ventura-Flores. The INA unambiguously
provides that a noncitizen applying for relief from removal “has the burden of
proof to establish” that the noncitizen “satisfies the applicable eligibility
requirements.” § 1229a(c)(4)(A). The Supreme Court recently clarified that any
ambiguity or incompleteness in the record—unfairly or not—works against the
noncitizen applying for discretionary relief from removal. Pereida v. Wilkinson,
141 S. Ct. 754, 767 (2021).
3. We deny Ventura-Flores’s due process claim because he does not have a
liberty interest in discretionary relief from removal, and he did not show error and
prejudice. While due process entitles noncitizens to a “full and fair hearing” in
deportation proceedings, noncitizens do not have an enforceable liberty interest in
privileges created by Congress, including cancellation of removal. Mendez-Garcia
v. Lynch, 840 F.3d 655, 665 (9th Cir. 2016). Nor has he shown substantial
prejudice. Lata v. INS, 204 F.3d 1241, 1246 (9th Cir. 2000). He has not
demonstrated how the information in the purged state court documents would have
established that the individual in those records is not him.
PETITION DENIED.
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