Jose Lopez-Lopez v. William Barr ( 2019 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS APR 22 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOSE ARIEL LOPEZ-LOPEZ, AKA Jose No. 18-71180
Ariel Lopez, AKA Jose Ariel Lopez Lopez,
Agency No. A092-856-198
Petitioner,
v. MEMORANDUM*
WILLIAM P. BARR, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted April 17, 2019**
Before: McKEOWN, BYBEE, and OWENS, Circuit Judges.
Jose Ariel Lopez-Lopez, a native and citizen of Mexico, petitions for review
of the Board of Immigration Appeals’ order dismissing his appeal from an
immigration judge’s (“IJ”) decision denying his application for a waiver of
inadmissibility under former 8 U.S.C. § 1182(c). Our jurisdiction is governed by 8
*
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).
U.S.C. § 1252. We review de novo questions of law and constitutional claims.
Najmabadi v. Holder, 597 F.3d 983, 986 (9th Cir. 2010). We deny the petition for
review.
The agency did not err or violate due process by admitting into evidence
Sergeant Mark O’Dell’s testimony and an investigative report, where such
evidence was probative, its admission was fundamentally fair, and Lopez-Lopez
did not show that it was inaccurate or unreliable. See Paredes-Urrestarazu v. INS,
36 F.3d 801, 810 (9th Cir. 1994) (“[A]s long as the Board does not consider
inappropriate or irrelevant factors, we think that the breadth of the section 212(c)
inquiry permits the Board to consider evidence of conduct that does not result in a
conviction.” (internal citations omitted)); Sanchez v. Holder, 704 F.3d 1107, 1109
(9th Cir. 2012) (rejecting petitioner’s claim that evidence constituted inadmissible
hearsay, where the sole test for admission of evidence in immigration proceedings
is whether the evidence is probative and its admission is fundamentally fair);
Espinoza v. INS, 45 F.3d 308, 310 (9th Cir. 1995) (burden of establishing a basis
for exclusion of evidence from a government record falls on the opponent of the
evidence, who must come forward with enough negative factors to persuade the
court not to admit it); Lata v. INS, 204 F.3d 1241, 1246 (9th Cir. 2000) (requiring
error and substantial prejudice to prevail on a due process claim).
Because Lopez-Lopez’s contentions regarding the agency’s adverse
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credibility determination assume that the agency erred in admitting Sergeant
O’Dell’s testimony and the investigative report into evidence, it follows that
Lopez-Lopez did not establish error in the agency’s credibility determination. See
Lata, 204 F.3d at 1246.
To the extent the agency’s discretionary denial of relief was based on an
adverse inference from Lopez-Lopez’s invocation of his Fifth Amendment right
against self-incrimination, Lopez-Lopez has not established that the agency erred,
and he cites no authority to support his contention that the agency was not
permitted to draw an adverse inference under the particular circumstances of his
case. See Gutierrez v. Holder, 662 F.3d 1083, 1091 (9th Cir. 2011) (“In a
deportation hearing there is no prohibition against drawing an adverse inference
when a petitioner invokes his Fifth Amendment right against self-incrimination.”).
We reject Lopez-Lopez’s claim that the IJ deprived him of a full and fair
hearing on account of bias, hostility, improperly questioning or limiting the
testimony of witnesses, or standing in moral judgment. See Colmenar v. INS, 210
F.3d 967, 971 (9th Cir. 2000) (due process claims require showing that
proceedings were “so fundamentally unfair that the alien was prevented from
reasonably presenting his case”) (internal quotation marks and citation omitted));
Almaghzar v. Gonzales, 457 F.3d 915, 922 (9th Cir. 2006) (petitioner “had ample
opportunity to present his case, and the record as a whole does not suggest that the
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IJ did not conduct the hearing with an open mind”).
The agency did not err or violate due process in denying Lopez-Lopez’s
request for a continuance to await the conclusion of an open criminal investigation
or allow him to retain different counsel, where he did not demonstrate good cause,
and where he was represented by his attorney of choice up to his final hearing; at
the time of his request, no new attorney had filed a notice of appearance on his
behalf; and his current counsel had competently represented him over a period of
years. See Ahmed v. Holder, 569 F.3d 1009, 1012 (9th Cir. 2009) (listing factors to
consider); Singh v. Holder, 638 F.3d 1264, 1274 (9th Cir. 2011) (“[T]he IJ [is] not
required to grant a continuance based on . . . speculations.”); Lata, 204 F.3d at
1246; cf. Ram v. Mukasey, 529 F.3d 1238, 1242 (9th Cir. 2008) (an IJ may
“determine, in the absence of a showing of good cause for an additional
continuance, that the right to counsel has been forfeited”).
PETITION FOR REVIEW DENIED.
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