Rodrigo Naveda-Mena v. Merrick Garland ( 2021 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 21 2021
MOLLY C. DWYER, CLERK
FOR THE NINTH CIRCUIT U.S. COURT OF APPEALS
RODRIGO SALVADOR NAVEDA- No. 19-73200
MENA,
Agency No. A205-147-891
Petitioner,
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted June 11, 2021**
Seattle, Washington
Before: W. FLETCHER, WATFORD, and COLLINS, Circuit Judges.
Rodrigo Naveda-Mena, a citizen and native of Mexico, petitions for review
of the decision of the Board of Immigration Appeals (“BIA”) dismissing his appeal
from an order of the Immigration Judge (“IJ”) denying his application for
voluntary departure as a matter of discretion. Although we generally lack
jurisdiction to review the agency’s decision to deny voluntary departure, see
*
This disposition is not appropriate for publication and is not precedent except as
provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes that this case is suitable for decision without
oral argument. See FED. R. APP. P. 34(a)(2)(C).
8 U.S.C. § 1229c(f); Esquivel-Garcia v. Holder, 593 F.3d 1025, 1030 (9th Cir.
2010), we retain jurisdiction “over questions of law in denials of discretionary
relief, including voluntary departure,” Corro-Barragan v. Holder, 718 F.3d 1174,
1176 (9th Cir. 2013); see also 8 U.S.C. § 1252(a)(2)(D). To the extent we have
jurisdiction, we review legal questions de novo. Hamazaspyan v. Holder, 590 F.3d
744, 747 (9th Cir. 2009). We dismiss the petition for lack of jurisdiction in part
and deny it in part.
1. We have jurisdiction over Naveda-Mena’s claim that the agency failed to
balance favorable and unfavorable factors in denying his request for voluntary
departure. See Mendez-Castro v. Mukasey, 552 F.3d 975, 979 (9th Cir. 2009)
(“We have held that whether [the agency] failed to apply a controlling standard
governing a discretionary determination is a question over which we have
jurisdiction under § 1252(a)(2)(D).”). We reject this claim. Even assuming that
the IJ’s decision fails to show that the IJ applied the relevant balancing test, any
error was harmless because the BIA clearly did so on its de novo review. See
Brezilien v. Holder, 569 F.3d 403, 411 (9th Cir. 2009). The BIA explicitly
recognized “the positive equities reflected in the record, including that the
respondent is married to a United States citizen who filed a visa petition . . . on his
behalf, which the U.S. Citizenship and Immigration Services approved.” It also
recognized “that the respondent and his wife have two children, ages 5 and 1, and
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that he is the sole breadwinner for the family.” However, in reviewing the IJ’s
decision de novo, the BIA concluded that “the seriousness, dangerousness, and
extent of [Naveda-Mena’s] criminal record outweighs these positive equities.”
Because the BIA applied the appropriate balancing test de novo, there was no legal
error in this respect.
2. We lack jurisdiction to review Naveda-Mena’s contention that, in
denying voluntary departure, the agency gave undue weight to his 2010 admissions
to police that he had participated in cocaine trafficking. The BIA acknowledged
Naveda-Mena’s arguments on this score and concluded that “there is no evidence
that his admissions to the authorities at the time of his arrest were in any way
coerced, under duress, or incorrect.” Naveda-Mena argues that a different
assessment in the balance of favorable and unfavorable factors was warranted in
light of the circumstances under which the statements were made and his
contentions about the underlying events. These arguments do not raise any legal
question but instead challenge the agency’s ultimate exercise of discretion, which
we lack jurisdiction to review. See Martinez-Rosas v. Gonzales, 424 F.3d 926, 930
(9th Cir. 2005). Likewise, to the extent that Naveda-Mena challenges the ultimate
result of the BIA’s balancing of factors—a question that would require us to
“reweigh evidence and substitute our view in place of the [BIA’s] discretionary
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decision”—we lack jurisdiction to review that claim. See Galeano-Romero v.
Barr, 968 F.3d 1176, 1184 (9th Cir. 2020).
The petition for review is DISMISSED in part and DENIED in part.
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