Alex Montejo Ake v. Merrick Garland ( 2023 )

NOT FOR PUBLICATION FILED
FEB 27 2023
UNITED STATES COURT OF APPEALS
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ALEX RANGEL MONTEJO AKE,
No. 20-70294
AKA Alex Montejo-Rangel,
Petitioner, Agency No. A200-823-530
v. MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted December 6, 2022**
San Francisco, California
Before: NGUYEN and KOH, Circuit Judges, and BATAILLON*** District Judge.
*
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 Joseph F. Bataillon, United States District Judge for the
District of Nebraska, sitting by designation.
1
Alex Rangel Montejo Ake (“Petitioner”), a native and citizen of Mexico,
petitions for review of an order of the Board of Immigration Appeals (“Board”). As
relevant here, the Board denied Petitioner’s motion to terminate proceedings
pursuant to Pereira v. Sessions, 138 S. Ct. 2105 (2018), and denied Petitioner’s
motion to reconsider and remand for consideration of a cancellation of removal
claim under 8 U.S.C. § 1229b(b).1 We have jurisdiction under 8 U.S.C. § 1252, and
we deny the petition.2
We review the Board’s denial of a motion to reconsider and remand for abuse
of discretion. See Lara-Torres v. Ashcroft, 383 F.3d 968, 972 (9th Cir. 2004);
Movsisian v. Ashcroft, 395 F.3d 1095, 1098 (9th Cir. 2005). The Board abuses its
discretion if its decision is “arbitrary, irrational, or contrary to law.” Lopez-Galarza
v. I.N.S., 99 F.3d 954, 960 (9th Cir. 1996) (citation omitted). The agency’s “findings
of fact are conclusive unless any reasonable adjudicator would be compelled to
conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B). Thus, in order to reverse the
Board, “we must determine that the evidence not only supports a contrary
1
Petitioner does not appeal the Board’s decision to dismiss his appeal of the
Immigration Judge’s denial of withholding of removal and protection under the
Convention Against Torture, nor the Board’s refusal to reopen proceedings sua
sponte.
2
As Petitioner concedes, our precedent forecloses his argument that a defective
notice to appear (“NTA”) deprives the immigration court of jurisdiction. See United
States v. Bastide-Hernandez, 39 F.4th 1187, 1190–94 (9th Cir. 2022) (en banc); see
also Aguilar Fermin v. Barr, 958 F.3d 887, 895 (9th Cir. 2020).
2
conclusion, but compels it—and also compels the further conclusion that the
petitioner meets the requisite standard for obtaining relief.” Ling Huang v. Holder,
744 F.3d 1149, 1152 (9th Cir. 2014) (cleaned up). “Where, as here, the [Board]
adopts the [Immigration Judge’s] decision while adding its own reasons, this court
reviews both decisions.” Vahora v. Holder, 641 F.3d 1038, 1042 (9th Cir. 2011).
To qualify for cancellation of removal, a person must demonstrate (1)
continuous physical presence in the United States for ten years immediately prior to
being served with a NTA; (2) good moral character; (3) that he is not subject to any
other bar to eligibility on account of having certain criminal convictions; and (4) the
existence of a U.S. citizen or lawful permanent resident spouse, parent, or child who
would suffer exceptional and extremely unusual hardship if the person were
removed. See 8 U.S.C. § 1229b(b)(1). The bar for cancellation of removal is high.
See In re Gonzalez Recinas, 23 I. & N. Dec. 467, 469–72 (BIA 2002).
The parties focus on the fourth requirement under § 1229b(b)(1). The Board
found that Petitioner failed to produce sufficient evidence to make a prima facie
showing that he could satisfy the exceptional and extremely unusual hardship
requirement. On appeal, Petitioner argues that his two U.S.-citizen children would
face violence when they accompany him to Mexico. But Petitioner cites only to
evidence that he may face persecution upon return, not evidence of potential harm
to his children. See Partap v. Holder, 603 F.3d 1173, 1175 (9th Cir. 2010) (per
3
curiam) (no abuse of discretion where petitioner fails to present sufficient evidence
demonstrating the requisite hardship). Moreover, Petitioner’s cancellation
application indicates that his children would not accompany him to Mexico if his
application were denied. Accordingly, the Board did not abuse its discretion in
finding that Petitioner failed to make a prima facie showing of hardship.
PETITION DENIED.
4