Oscar Avila-Ramirez v. Jefferson Sessions , 691 F. App'x 889 ( 2017 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUN 1 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
OSCAR AVILA-RAMIREZ, No. 15-73140
Petitioner, Agency No. A200-705-657
v.
MEMORANDUM*
JEFFERSON B. SESSIONS III, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted May 24, 2017**
Before: THOMAS, Chief Judge, and SILVERMAN and RAWLINSON,
Circuit Judges.
Oscar Avila-Ramirez, a native and citizen of Mexico, petitions for review of
the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an
immigration judge’s (“IJ”) order denying cancellation of removal. Our jurisdiction
is governed by 8 U.S.C. § 1252. We review for substantial evidence factual
*
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).
findings and review de novo questions of law. Hernandez-Mancilla v. Holder, 633
F.3d 1182, 1184 (9th Cir. 2011). We deny the petition for review.
Substantial evidence supports the agency’s finding that Avila-Ramirez is
ineligible for cancellation of removal for failure to demonstrate the requisite
continuous physical presence, where he conceded that he remained outside the
United States for a period of more than 90 days during the relevant period. See 8
U.S.C. § 1229b(b)(1)(A), (d)(2) (a departure in excess of 90 days breaks
continuous physical presence). Avila-Ramirez cites no authority that ineffective
assistance of counsel provides an exception to the continuous physical presence
requirement. Cf. Hernandez-Mancilla, 633 F.3d at 1182 (finding no ineffective
assistance of counsel due process violation, where the actions of counsel occurred
outside the context of removal proceedings).
Because Avila-Ramirez failed to establish statutory eligibility for
cancellation of removal, the IJ did not violate due process in pretermitting his
application and declining to hold a merits hearing. See 8 C.F.R. § 1240.8(d) (alien
has the burden of proof in establishing eligibility for relief from removal); Lata v.
INS, 204 F.3d 1241, 1246 (9th Cir. 2000) (to prevail on a due process challenge, an
alien must show error and prejudice).
Avila-Ramirez’s contention regarding the applicability of 8 U.S.C.
§ 1427(b) is unavailing, where that statute addresses residency requirements for
2 15-73140
naturalization.
We do not address Avila-Ramirez’s contentions regarding ineffective
assistance of counsel, where the BIA made its determination even assuming he
could establish an ineffective assistance claim. See Najmabadi v. Holder, 597 F.3d
983, 992 (9th Cir. 2010) (court’s review is limited to the grounds actually relied
upon by the BIA).
PETITION FOR REVIEW DENIED.
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