Rodrigo Lopez v. Merrick Garland ( 2021 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS NOV 2 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
RODRIGO A. LOPEZ, AKA Rodrigo No. 19-72407
Lopez Avila,
Agency No. A073-949-006
Petitioner,
v. MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted October 6, 2021**
Seattle, Washington
Before: PAEZ, M. SMITH, and NGUYEN, Circuit Judges.
Rodrigo Lopez, a citizen of Mexico, petitions for review of a decision by the
Board of Immigration Appeals (“BIA”) upholding an immigration judge’s (“IJ”)
*
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).
denial of his application for an adjustment of status pursuant to 8 U.S.C. § 1255(i).
We have jurisdiction under 8 U.S.C. § 1252, and we deny Lopez’s petition.
The court lacks jurisdiction under 8 U.S.C. § 1252(a)(2)(B)(i) to review the
agency’s discretionary decision to grant or deny adjustment of status under § 1255.
See Bazua-Cota v. Gonzales, 466 F.3d 747, 748 (9th Cir. 2006). The court has
jurisdiction, however, to consider colorable legal questions and constitutional
claims. See 8 U.S.C. § 1252(a)(2)(D); see also Ramirez-Perez v. Ashcroft, 336
F.3d 1001, 1004 (9th Cir. 2003). The court reviews de novo such claims. See
Rojas v. Holder, 704 F.3d 792, 794 (9th Cir. 2012).
1. Lopez argues that the IJ erred in admitting the transcript of an interview
he gave to the Phoenix Police Department during its investigation into allegations
that he sexually abused his minor stepdaughter, as well as a recording of the same
interview. He asserts that admission of these materials violated his due process
rights because they failed to comply with the procedural requirements in the
Immigration Court Practice Manual. Even if the materials were procedurally
deficient under the Practice Manual, it does not necessarily follow that their use
violated Lopez’s due process rights; the Manual is nonbinding, and the IJ has the
power to disregard its requirements in a particular case. Dep’t of Justice,
Immigration Court Practice Manual, § 1.1(b) (2020),
https://www.justice.gov/file/1250706/download. Nor is there any indication that
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Lopez was prejudiced by the procedural defects. At the time of the merits hearing,
he had received a copy of both the transcript and the recording and acknowledged
that he was already familiar with the substance of the interview. Indeed, Lopez
himself authenticated the materials.
2. Lopez further argues that neither the recording nor the transcript should
have been admitted because neither is probative given that he was acquitted of the
sexual abuse charges. By considering the interview in declining to favorably
exercise discretion, Lopez argues, the IJ impermissibly re-tried the criminal case
against him. Lopez misstates the effect of an acquittal. A jury may find a
defendant not guilty for any number of reasons, and such a verdict is not a
definitive statement that the underlying accusations are not true. See United States
v. Weinstein, 834 F.2d 1454, 1465 (9th Cir. 1987). The agency did not question
Lopez’s acquittal or reach any conclusions about his guilt or innocence of the
crime for which he was charged. It merely considered the underlying conduct and
confession that led to his criminal prosecution in deciding whether to grant his
application for adjustment of status.
Evidence related to a crime for which a petitioner was not convicted may
still be probative of factors that weigh on the agency’s exercise of its discretion,
including a petitioner’s “bad character and undesirability for permanent
residency.” Rojas, 704 F.3d at 794. Such evidence is especially probative when
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the petitioner admits to the underlying facts. See id. Lopez’s statements about his
relationships with his stepdaughter and stepson, including his admission to police
that he had engaged in instances of sexual contact with his stepdaughter, were
relevant to the agency’s evaluation of his application, and the fact that the agency
considered them did not violate his due process rights. See id. at 794-95.
3. Finally, Lopez argues that the BIA failed to follow its own precedent that
little weight should be given to allegations in a police report “absent a conviction
or corroborating evidence.” In re Arreguin De Rodriguez, 21 I. & N. Dec. 38, 42
(B.I.A. 1995). The allegations of wrongdoing here, however, are supported by
extensive corroborating evidence, including Lopez’s own admission. And to the
extent Lopez disagrees with the BIA’s decision about how to weigh the evidence,
his argument is merely “an abuse of discretion challenge re-characterized as an
alleged due process violation” rather than a colorable legal claim, and we do not
have jurisdiction to review it. Bazua-Cota, 466 F.3d at 749.
PETITION FOR REVIEW DENIED.
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