Celedonio Silva-Olayo v. William Barr ( 2019 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 26 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
CELEDONIO SILVA-OLAYO, Nos. 15-70960
15-73076
Petitioner,
Agency No. A200-878-130
v.
WILLIAM P. BARR, Attorney General, ORDER AND MEMORANDUM*
Respondent.
On Petition for Review of Orders of the
Board of Immigration Appeals
Argued and Submitted March 8, 2019
Portland, Oregon
Before: GRABER and BERZON, Circuit Judges, and ROBRENO,** District
Judge.
Celedonio Silva-Olayo, a native and citizen of Mexico, petitions for review
of two orders from the Board of Immigration Appeals (BIA). In the first order, the
BIA dismissed an appeal from an immigration judge (IJ) denying Silva’s
application for cancellation of removal. In the second, the BIA denied a motion to
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Eduardo C. Robreno, United States District Judge for
the Eastern District of Pennsylvania, sitting by designation.
reopen based on Silva’s alleged incompetency during the proceedings. We dismiss
in part and deny in part.
1. We dismiss Silva’s first petition for review, challenging the IJ’s denial
of Silva’s cancellation application, for lack of jurisdiction.1 We lack jurisdiction to
review an IJ’s denial of cancellation of removal except where a colorable
constitutional or legal question relating to the cancellation determination has been
raised. 8 U.S.C. § 1252(a)(2)(B)(i), (a)(2)(D); see also Martinez-Rosas v.
Gonzales, 424 F.3d 926, 930 (9th Cir. 2005). We also lack jurisdiction to review “a
legal claim not presented in administrative proceedings below.” Barron v.
Ashcroft, 358 F.3d 674, 678 (9th Cir. 2004). Here, any such colorable
constitutional or legal claims pertaining to Silva’s cancellation determination were
not presented to the BIA and so have not been exhausted. See Abebe v. Mukasey,
554 F.3d 1203, 1208 (9th Cir. 2009) (en banc). We therefore lack jurisdiction over
those claims.
2. The BIA did not abuse its discretion by denying Silva’s motion to
reopen as to due process claims related to his alleged incompetency. Silva has not
1
As part of this petition for review, Silva also requested that we take judicial
notice of certain documents purporting to establish his eligibility for voluntary
departure. As Silva raised no arguments relating to voluntary departure in his
briefs, we DENY the motion.
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shown that the failure of his attorney or the IJ to recognize his alleged
incompetency prejudiced him.
“As a general rule, an individual may obtain relief for a due process
violation only if he shows that the violation caused him prejudice, meaning the
violation potentially affected the outcome of the immigration proceeding.” Gomez-
Velazco v. Sessions, 879 F.3d 989, 993 (9th Cir. 2018). “To show prejudice, [a
petitioner] must present plausible scenarios in which the outcome of the
proceedings would have been different if a more elaborate process were provided.”
Tamayo-Tamayo v. Holder, 725 F.3d 950, 954 (9th Cir. 2013) (alteration in
original) (quoting Morales-Izquierdo v. Gonzales, 486 F.3d 484, 495 (9th Cir.
2007) (en banc)).
Here, Silva has not explained how the removal proceedings would have been
different had he been found to be incompetent under Matter of M-A-M-, 25 I. & N.
Dec. 474 (B.I.A. 2011). Silva was represented by an attorney and received
supporting testimony from the mother of his children. The IJ left the record open
for more than one year to allow Silva to provide additional evidence, which he did
not do. Silva was therefore “afforded the very safeguards contemplated by
M-A-M-[:] the opportunity to consult with his attorney and to examine witnesses
and present evidence.” Salgado v. Sessions, 889 F.3d 982, 988 (9th Cir. 2018).
Because Silva has not shown that an incompetency determination would have led
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to “a more elaborate process,” he has likewise failed to establish that “the outcome
of the proceedings would have been different” if he were found incompetent.
Tamayo-Tamayo, 725 F.3d at 954 (quoting Morales-Izquierdo, 486 F.3d at 495).
3. The BIA also did not abuse its discretion in denying Silva’s motion to
reopen based on new claims for asylum, withholding of removal, and relief under
the Convention Against Torture (CAT). To warrant reopening based on a new
claim for relief, a petitioner must “establish[] a prima facie case of eligibility for
the underlying relief sought.” Ramirez-Munoz v. Lynch, 816 F.3d 1226, 1228 (9th
Cir. 2016). Silva has not shown prima facie eligibility for asylum and withholding
of removal, as “vague and conclusory allegations of fear for his life if he returns to
Mexico are clearly insufficient to support a finding of a well-founded fear of future
persecution.” Mendez-Gutierrez v. Gonzales, 444 F.3d 1168, 1172 (9th Cir. 2006).
Nor has Silva established prima facie eligibility for CAT relief, as he did not
provide evidence showing that “it is more likely than not he would be tortured with
the consent or acquiescence of a public official” upon returning to Mexico. Cano-
Merida v. INS, 311 F.3d 960, 966 (9th Cir. 2002).
DISMISSED in part, DENIED in part.
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