Armando Aguirre-Madero v. Loretta E. Lynch ( 2016 )

FILED
NOT FOR PUBLICATION JAN 22 2016
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ARMANDO AGUIRRE-MADERO, No. 11-73824
Petitioner, Agency No. A088-765-037
v.
MEMORANDUM*
LORETTA E. LYNCH, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted December 8, 2015**
San Francisco, California
Before: O’SCANNLAIN, SILVERMAN, and BEA, Circuit Judges.
Armando Aguirre-Madero petitions for review of a Board of Immigration
Appeals (“BIA”) decision which found him statutorily ineligible for adjustment of
status and which dismissed his appeal of the denial of cancellation of removal. We
review legal questions de novo, and we deny the petition for review.
*
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).
Aguirre-Madero is not eligible for adjustment of status under 8 U.S.C. §
1255(i) because he is an alien who has been unlawfully present in the United States
for an aggregate period of more than one year. That is conceded. This fact renders
him inadmissible under 8 U.S.C. § 1182(a)(9)(C)(i)(I). Garfias-Rodriguez v.
Holder, 702 F.3d 504, 507 (9th Cir. 2012) (en banc). The BIA did not err when it
found Aguirre-Madero ineligible for adjustment of status.
To prevail on his claim that the IJ and BIA violated his due process rights,
Aguirre-Madero must show that he suffered prejudice. Cano-Merida v. I.N.S., 311
F.3d 960, 965 (9th Cir. 2002). Even assuming the IJ erred if it failed to address
with particularity his reasons for rejecting Aguirre-Madero’s claim of hardship to
Aguirre-Madero’s parents, Aguirre-Madero cannot show that he was prejudiced by
this error. The IJ stated that Aguirre-Madero was “not . . . a fit candidate for
cancellation of removal.” This court does not have jurisdiction to review the
discretionary decision as to cancellation, and so Aguirre-Madero cannot show
prejudice. Romero-Torres v. Ashcroft, 327 F.3d 887, 892 (9th Cir. 2003).
Further, the BIA properly considered the evidence submitted as to Aguirre-
Madero’s parents in considering his appeal. The BIA did not, as Aguirre-Madero
contends, violate due process when it failed to remand for further factfinding.
Aguirre-Madero was entitled to a full and fair hearing on his claims, which he
received. But he was not entitled to a second opportunity to present evidence, as
he had already offered testimony and documents. Cano-Merida, 311 F.3d at 964.
The petition for review is DENIED.