Jaime Hernandez Lopez v. Loretta E. Lynch , 605 F. App'x 649 ( 2015 )

FILED
NOT FOR PUBLICATION MAY 21 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JAIME HERNANDEZ LOPEZ, No. 13-70134
Petitioner, Agency No. A200-707-364
v.
MEMORANDUM*
LORETTA E. LYNCH, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted May 13, 2015**
Before: LEAVY, CALLAHAN, and M. SMITH, Circuit Judges.
Jaime Hernandez Lopez, a native and citizen of Mexico, petitions for review
of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an
immigration judge’s (“IJ”) order of removal. Our jurisdiction is governed by 8
U.S.C. § 1252. We review for substantial evidence the agency’s factual findings,
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
including credibility determinations. Bassene v. Holder, 737 F.3d 530, 536 (9th
Cir. 2013). We review for abuse of discretion the denial of a motion for a
continuance and review de novo constitutional claims. Sandoval-Luna v. Mukasey,
526 F.3d 1243, 1246 (9th Cir. 2008). We deny in part and dismiss in part the
petition for review.
The record does not compel reversal of the agency’s determination that
Hernandez Lopez failed to establish that he had been admitted to the United States,
and that he was therefore both removable and ineligible for adjustment of status,
where the agency’s adverse credibility determination was supported by substantial
evidence and Hernandez Lopez failed to present corroborating evidence
concerning the manner of his entry into the United States. See 8 U.S.C. § 1255(a);
Shrestha v. Holder, 590 F.3d 1034, 1048 (9th Cir. 2010) (alien failed to meet his
burden where, absent his discredited testimony, there was no objective evidence to
support his claim).
Contrary to his contentions, the agency did not abuse its discretion or violate
Hernandez Lopez’ due process rights by denying a continuance to await
adjudication of his I-130 visa petition. See 8 U.S.C. § 1255(a) (requiring applicant
for adjustment of status to have been “inspected and admitted or paroled into the
United States”); Sandoval-Luna, 526 F.3d at 1247 (no abuse of discretion by
2 13-70134
denying a motion for a continuance where the relief sought was not available to
petitioner); Lata v. INS, 204 F.3d 1241, 1246 (9th Cir. 2000) (to prevail on a due
process challenge, an alien must show error and prejudice).
Hernandez Lopez’s contention that the agency abused its discretion and
violated his due process rights by pretermitting his application for cancellation of
removal and by denying his request for a continuance to allow him to submit
fingerprints fails where the IJ advised Hernandez Lopez orally and in writing of the
deadline for being fingerprinted and the consequences of failure to meet the
deadline, and Hernandez Lopez had sufficient time to comply and indicated that he
understood the IJ’s warnings. See Cui v. Mukasey, 538 F.3d 1289, 1293-95 (9th
Cir. 2008) (the agency abused its discretion where it declined to grant a
continuance for the alien to resubmit required fingerprints, where the alien had no
notice of the requirement); Lata, 204 F.3d at 1246.
Contrary to Hernandez Lopez’ contention, the BIA provided sufficient
reasoning and detail in its opinion. See Najmabadi v. Holder, 597 F.3d 983, 990
(9th Cir. 2010) (“[The BIA] does not have to write an exegesis on every
contention. What is required is merely that [the BIA] consider the issues raised,
and announce its decision in terms sufficient to enable a reviewing court to
3 13-70134
perceive that it has heard and thought and not merely reacted.” (citation and
quotation marks omitted)).
We lack jurisdiction to consider Hernandez Lopez’ contention that the IJ
exhibited bias against him, where he failed to exhaust that contention before the
agency. See Tijani v. Holder, 628 F.3d 1071, 1080 (9th Cir. 2010) (the court lacks
jurisdiction to consider legal claims not presented in an alien’s administrative
proceedings before the agency).
PETITION FOR REVIEW DENIED in part; DISMISSED in part.
4 13-70134