Luis Gutierrez Gutierrez v. Jefferson Sessions ( 2018 )

NOT FOR PUBLICATION FILED
JUN 12 2018
UNITED STATES COURT OF APPEALS
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
LUIS HERNADO GUTIERREZ No. 10-73046
GUTIERREZ,
Agency No. A037-124-952
Petitioner,
v. MEMORANDUM*
JEFFERSON B. SESSIONS III, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted June 7, 2018**
Pasadena, California
Before: TALLMAN and NGUYEN, Circuit Judges, and BENNETT,*** District
Judge.
*
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 Mark W. Bennett, United States District Judge for the
Northern District of Iowa, sitting by designation.
Luis Hernando Gutierrez Gutierrez petitions for review of the Board of
Immigration Appeals’ (“BIA”) order dismissing his appeal from the Immigration
Judge’s (“IJ”) decision denying his application for cancellation of removal. We
have jurisdiction under 8 U.S.C. § 1252, and deny the petition.
Gutierrez contends that the BIA violated his right to due process because it
“misread the [IJ]’s decision.” “Constitutional due process challenges to
immigration decisions are reviewed de novo.” Cinapian v. Holder, 567 F.3d 1067,
1073 (9th Cir. 2009) (citations omitted).
Gutierrez has two prior convictions, one in 1990 and the other in 2008. In
determining whether Gutierrez suffered an aggravated felony conviction, the IJ
conducted a modified categorical analysis of the 1990 conviction. In upholding the
IJ’s decision, however, the BIA mistakenly referred to the 2008 conviction. This
was clearly a typographical error because the IJ neither conducted a categorical
analysis of the 2008 conviction nor considered whether that conviction was an
aggravated felony. The typographical error did not violate Gutierrez’s rights, and
in any event, Gutierrez cannot demonstrate prejudice, because the record shows he
is removable and ineligible for cancellation of removal. See United States v.
Barajas-Alvarado, 655 F.3d 1077, 1088 (9th Cir. 2011) (Petitioner must show that
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“the procedural errors he identifies deprived him of due process, and he suffered
prejudice as a result.”).
PETITION DENIED.
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