Leonardo Martinez-Valles v. Jefferson Sessions , 706 F. App'x 413 ( 2017 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 15 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
LEONARDO MARTINEZ-VALLES, No. 15-71313
Petitioner,
Agency No. A070-289-860
v.
JEFFERSON B. SESSIONS III, Attorney MEMORANDUM*
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted December 5, 2017**
San Francisco, California
Before: OWENS and FRIEDLAND, Circuit Judges, and BUCKLO,*** District
Judge.
Petitioner Leonardo Martinez-Valles, a native and citizen of El Salvador,
petitions for review of a Board of Immigration Appeals (“BIA”) decision affirming
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes that this case is suitable for
decision without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Elaine E. Bucklo, United States District Judge for the
Northern District of Illinois, sitting by designation.
an Immigration Judge’s determination that Petitioner withdrew an earlier appeal
pursuant to 8 C.F.R. § 1003.4. We have jurisdiction pursuant to 8 U.S.C. § 1252
and deny the petition.
We review questions of law de novo. Hamazaspyan v. Holder, 590 F.3d 744,
747 (9th Cir. 2009). The BIA did not err in deeming Petitioner’s first appeal to the
BIA withdrawn because it is undisputed that Petitioner voluntarily departed the
United States while his appeal of a removal order was pending. Under 8 C.F.R. §
1003.4, this departure constitutes a withdrawal of his appeal. See Aguilera-Ruiz v.
Ashcroft, 348 F.3d 835, 839 (9th Cir. 2003).
Petitioner’s contention that his due process rights were violated due to
insufficient notice fails because Petitioner admits that he received two separate
notices warning him that departing the United States might lead to withdrawal of
his appeal. Although the notices Petitioner received were not identical—the first
warned that departure “may” lead to withdrawal, while the latter warned that
departure “will” lead to withdrawal—the difference between them is immaterial.
Both notices conveyed a general advisory of 8 C.F.R. § 1003.4’s consequences and
were not contradictory. Because Petitioner received adequate notice of the rule, his
due process challenge fails. Cf. Martinez-de Bojorquez v. Ashcroft, 365 F.3d 800,
806 (9th Cir. 2004) (application of 8 C.F.R. § 1003.4 “without any notice
whatsoever” can violate due process in some circumstances). That the BIA did not
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specifically cite the earlier notice in its decision does not change this result. See
Ramirez-Villalpando v. Holder, 645 F.3d 1035, 1040 (9th Cir. 2011) (“The BIA is
not required to ‘expressly parse or refute on the record each individual argument or
piece of evidence offered by the petitioner.’” (quoting Wang v. Bd. of Immigration
Appeals, 437 F.3d 270, 275 (2d Cir. 2006))).
PETITION FOR REVIEW DENIED.
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