Santos Villatoro-Molina v. Merrick Garland ( 2023 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS FEB 24 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
SANTOS VILLATORO-MOLINA, AKA No. 18-72070
Santos Villa,
Agency No. A205-576-490
Petitioner,
v. MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted February 21, 2023**
Before: OWENS, LEE, and BUMATAY, Circuit Judges.
Santos Villatoro-Molina, a citizen of Guatemala, petitions for review the
Board of Immigration Appeals’ (BIA) order affirming the denial of his application
for cancellation of removal. We have jurisdiction under 8 U.S.C. § 1252(a)(1), and
we dismiss in part and deny in part.
*
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).
1. Villatoro argues that separation from his daughter would create an
exceptional and extremely unusual hardship, and that this court should reverse the
Immigration Judge (IJ) and BIA’s judgments as a result. This court has held that
hardship determinations are discretionary. Romero-Torres v. Ashcroft, 327 F.3d
887, 891 (9th Cir. 2003). We are statutorily barred from reconsidering discretionary
decisions under 8 U.S.C. § 1252(a)(2)(B)(i), and so we lack jurisdiction to review
this issue. See Martinez-Rosas v. Gonzales, 424 F.3d 926, 929–30 (9th Cir. 2005).
2. Next, Villatoro asserts that the IJ failed to inform him of his apparent
eligibility for voluntary departure and did not allow him or his counsel to address
the issue, violating his due process rights. Reversal of the BIA’s decision is
appropriate only if the proceedings were so fundamentally unfair that Villatoro was
unable to present his case, and if Villatoro shows he was materially so prejudiced
that the violations affected the outcome. Benedicto v. Garland, 12 F.4th 1049, 1058
(9th Cir. 2021); Ibarra-Flores v. Gonzales, 439 F.3d 614, 620 (9th Cir. 2006); see
also Tovar-Landin v. Ashcroft, 361 F.3d 1164, 1167 (9th Cir. 2004) (“[T]here is no
constitutionally protected liberty interest in the discretionary privilege of voluntary
departure.”). Neither of Villatoro’s claims meet this threshold.
While the IJ has a duty to inform noncitizens of apparent eligibility for relief,
the “apparent eligibility” standard of 8 C.F.R. § 1240.11(a)(2) is only triggered when
“the facts before the IJ raise a ‘reasonable possibility that the petitioner may be
2
eligible for relief.’” C.J.L.G. v. Barr, 923 F.3d 622, 626 (9th Cir. 2019) (quoting
Moran-Enriquez v. INS, 884 F.2d 420, 423 (9th Cir. 1989)). Here, the IJ denied
voluntary departure “because no evidence was presented regarding this form of relief
from removal.” 1 The IJ has no duty to comb the record for evidence of
eligibility. See United States v. Lopez-Velasquez, 629 F.3d 894, 900 (9th Cir. 2010)
(“Until the alien himself or some other person puts information before the judge that
makes such eligibility apparent, this duty does not come into play.”) (quoting
Moran-Enriquez, 884 F.2d at 422).
Villatoro’s claim that the IJ did not allow him to address his eligibility for
voluntary departure also fails. There are no facts in the record to suggest Villatoro
was denied this opportunity, and when the IJ asked if the parties wished to make any
further arguments or submit further documents, Villatoro declined.
The BIA held that Villatoro had not “demonstrated any harm that deprived
him of due process, including any prejudicial defects in the proceedings below.” See
Matter of Santos, 19 I&N Dec. 105, 112 (BIA 1984). Villatoro fails to show that his
proceedings were fundamentally unfair or that he suffered any prejudice, so there
are no grounds to reverse the BIA’s decision.
DISMISSED IN PART, DENIED IN PART.
1
Villatoro argues the IJ erred in finding that he lacked a good moral character. As
the BIA explained, the IJ did not make an explicit finding regarding Villatoro’s
moral character.
3