Pedro Rivas-Hernandez v. Matthew Whitaker ( 2019 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JAN 4 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
PEDRO RIVAS-HERNANDEZ, AKA No. 15-70966
Pedro Hernandez-Rivas, 17-70910
Petitioner, Agency No. A091-999-435
v.
MEMORANDUM*
MATTHEW G. WHITAKER, Acting
Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted November 9, 2018**
Pasadena, California
Before: RAWLINSON, MELLOY,*** and HURWITZ, Circuit Judges.
Pedro Rivas-Hernandez, a native and citizen of Mexico, was ordered removed
in 2007. After he reentered, the removal order was reinstated and an immigration
*
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).
***
The Honorable Michael J. Melloy, United States Circuit Judge for the
U.S. Court of Appeals for the Eighth Circuit, sitting by designation.
judge (“IJ”) denied his applications for withholding of removal and protection under
the Convention Against Torture (“CAT”). The Board of Immigration Appeals
(“BIA”) dismissed Rivas’ appeal and subsequently denied an untimely motion to
reopen the 2007 proceedings. We have jurisdiction over Rivas’ petitions for review
from those BIA decisions under 8 U.S.C. § 1252. We deny the petitions.
1. Rivas waived any challenge to the BIA’s withholding or CAT
determinations by failing to address them in his opening brief. See Rizk v. Holder,
629 F.3d 1083, 1091 n.3 (9th Cir. 2011); Fed. R. App. P. 28(a)(8)(A).
2. The IJ did not deny Rivas his right to retained counsel in the 2007
proceedings. She informed Rivas about his right to hire a lawyer and asked if he
wanted time to find one. By answering “no,” Rivas knowingly and intelligently
waived the right. See Velasquez Espinosa v. INS, 404 F.2d 544, 546 (9th Cir. 1968).
3. The IJ did not deny Rivas his right to appeal the 2007 removal order.
This not a case in which the IJ merely confirmed that Rivas accepted her decision as
final. See In re Rodriguez-Diaz, 22 I. & N. Dec. 1320, 1323 (B.I.A. 2000). Rivas
received an appeal rights form with his Notice to Appear and was provided a form
again when appearing before the IJ. The IJ also expressly told Rivas that he had a
right to appeal but her decision would be final if he accepted it. Rivas then indicated
that he accepted the decision. Under these circumstances, Rivas’ waiver was
considered and intelligent. See United States v. Garza-Sanchez, 217 F.3d 806, 808-
2
11 (9th Cir. 2000).
4. The 2007 removal proceedings did not otherwise violate due process.
Rivas admitted he was removable as a noncitizen who entered the country without
inspection. See 8 C.F.R. § 1240.10(c). Rivas cites no authority for his argument
that a group hearing violated due process. And, we lack jurisdiction to review the
IJ’s denial of voluntary departure. Oropeza-Wong v. Gonzales, 406 F.3d 1135, 1141
(9th Cir. 2005).
PETITIONS DENIED.
3