Miriam Gomez-Cantillano v. Merrick Garland ( 2021 )

FILED
NOT FOR PUBLICATION
DEC 13 2021
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MIRIAM GOMEZ-CANTILLANO, No. 19-72682
Petitioner, Agency No. A203-710-976
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney AND ORDER
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted December 7, 2021
San Francisco, California
Before: GRABER and COLLINS, Circuit Judges, and CHOE-GROVES,** Judge.
Petitioner Miriam Gomez-Cantillano, a native and citizen of Nicaragua,
petitions for review of an order issued in expedited removal proceedings. We
dismiss the petition.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Jennifer Choe-Groves, Judge for the United States
Court of International Trade, sitting by designation.
We lack jurisdiction to review expedited removal proceedings, including to
review the determination that Petitioner did not establish a credible fear of
persecution or torture. See 8 U.S.C. § 1252(a)(2)(A)(iii) (“[N]o court shall have
jurisdiction to review” determinations made under 8 U.S.C. § 1225(b)(1)(B)); see
also Singh v. Barr, 982 F.3d 778, 784 (9th Cir. 2020) (“Read together, [8 U.S.C.]
§§ 1252(a)(2)(A), (D) and 1252(e) provide clear and convincing evidence that
Congress intended to deprive circuit courts of appeals of jurisdiction to review
expedited removal orders and related matters affecting those orders, including
underlying negative credible fear determinations . . . .”). And, although
§ 1252(e)(2) lists some exceptions to the jurisdictional bar, none applies here. See
8 U.S.C. § 1252(e)(2) (listing exceptions).
We also lack jurisdiction to review Petitioner’s constitutional claim.
Contrary to Petitioner’s assertion that the immigration judge did not consider
whether Petitioner had a “credible fear of persecution,” see 8 U.S.C.
§ 1225(b)(1)(B)(iii)(III), the immigration judge did so and denied that contention
on the merits, relying on evidence that Petitioner did not establish a significant
possibility of persecution. Petitioner’s due process claim thus “cloak[s] an abuse
of discretion argument in constitutional garb.” Torres-Aguilar v. INS, 246 F.3d
21267, 1271 (9th Cir. 2001).1
Finally, we reject Petitioner’s argument that we have jurisdiction to consider
“structural errors.” In particular, the determination under 8 U.S.C.
§ 1225(b)(1)(A)(ii) that Petitioner is inadmissible under § 1182(a)(7) is not subject
to judicial review. See 8 U.S.C. § 1252(a)(2)(A)(iii). Moreover, the errors that
Petitioner claims are not actually “structural” in nature. Even if they were,
§ 1252’s jurisdiction-stripping provision does not contain a “structural error”
exception. See Guerrier, 2021 WL 5226070, at *8 (holding that this court lacks
jurisdiction even though the petitioner raised a colorable constitutional claim).
All pending motions are denied as moot.
PETITION DISMISSED.
1
Petitioner concedes that Guerrier v. Garland, No. 20-70115, 2021 WL
5226070 (9th Cir. Nov. 9, 2021) forecloses her access-to-counsel claim.
3