Orozco-Cortez v. Holder ( 2010 )

FILED
NOT FOR PUBLICATION JAN 22 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
MARCELO OROZCO-CORTEZ, No. 05-74737
Petitioner, Agency No. A090-209-918
v.
MEMORANDUM *
ERIC H. HOLDER Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted January 11, 2010
San Francisco, California
Before: NOONAN, HAWKINS and M. SMITH, Circuit Judges.
Marcelo Orozco-Cortez petitions for review of the Board of Immigration
Appeals’ decision denying his appeal from an Immigration Judge’s (IJ) order
denying his application for cancellation of removal. Assuming we have
jurisdiction to review the issues presented by this appeal, without articulating the
bases therefore, we deny the petition.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
As the facts and procedural history are familiar to the parties, we recite them
here only as necessary to explain our decision.
1. Abandonment of Lawful Permanent Resident (LPR) Status
The government bears the burden of establishing an alien’s abandonment of
his LPR status by clear and convincing evidence. Khodagholian v. Ashcroft, 335
F.3d 1003, 1006 (9th Cir. 2003). Although the record is unclear about what
standard of proof the IJ applied in finding that Orozco-Cortez abandoned his LPR
status, it contains substantial evidence upon which to find that the government met
its burden under the clear and convincing evidence standard. Orozco-Cortez
admitted that he fled the United States and remained in Mexico for two years in
order to avoid prosecution for attempted murder. Orozco-Cortez also admitted
that, at the time he fled to Mexico, he did not think about when, if ever, he would
return to the United States. That admission constitutes clear and convincing
evidence that Orozco-Cortez abandoned his LPR status. See Chavez-Ramirez v.
INS, 792 F.2d 932, 936-37 (9th Cir. 1986) (stating rule that a departing LPR who
does not maintain a continuous, uninterrupted intent to return to the United States
may be found to have abandoned his LPR status). Orozco-Cortez’s contacts with
the United States during and after his absence are insufficient to rebut the strong
evidence of abandonment arising from the reason for his departure and his
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admitted lack of an articulated intent to return. See Matter of Huang, 19 I. & N.
Dec. 749, 753 (BIA 1988) (“[T]he intention of the alien, when it can be
ascertained, will control.”).
Orozco-Cortez’s related arguments—that the IJ denied him due process by
failing to hold an evidentiary hearing during which Orozco-Cortez could present
additional evidence of his intent to retain his LPR status, and also by applying the
wrong standard of proof— both fail. To establish a due process violation, Orozco-
Cortez must show (1) that the proceeding was so fundamentally unfair that he was
prevented from reasonably presenting his case, and (2) prejudice. Ibarra-Flores v.
Gonzales, 439 F.3d 614, 620-21 (9th Cir. 2006).
First, although Orozco-Cortez is correct that he was entitled to an
evidentiary hearing on the abandonment of LPR status issue, see Landon v.
Plasencia, 459 U.S. 21, 36-37 (1982); Huang, 19 I. & N. Dec. at 754, he was
granted such a hearing during which he was asked about the circumstances
surrounding his departure. At that hearing, the IJ even requested additional
briefing. Moreover, even if the IJ had been required to schedule further
evidentiary hearings, Orozco-Cortez fails to show he was prejudiced by that failure
because he fails to identify what other evidence he would have presented to the IJ
that would have made any difference to the outcome of the proceedings.
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Second, as previously explained, even if the IJ did not apply the heightened
standard of clear and convincing evidence, there is substantial evidence in the
record to show that Orozco-Cortez abandoned his LPR status under that heightened
standard. Therefore, Orozco-Cortez cannot show prejudice.
2. Denial of a Continuance
Orozco-Cortez sought a continuance to permit his son to file a relative visa
petition, based on which Orozco-Cortez could have sought a waiver of removal
under § 1182(h). We review denial of a continuance for abuse of discretion.
Baires v. INS, 856 F.2d 89, 91 (9th Cir. 1988). Here, the IJ denied the request
because, since the relative visa petition had not yet been filed, the outcomes of
such a petition and related § 1182(h) waiver application were speculative.
Moreover, the proceedings had already been under way for two years. Under these
circumstances, we cannot say that the IJ abused his discretion in declining to
further continue the proceedings.
In addition, Orozco-Cortez cannot establish that denial of the continuance
violated his due process rights. Section 1182(h) waivers are granted only as a
matter of discretion. The granting of such a waiver would depend upon a showing
of “extreme hardship” to the alien’s petitioning family member, and would
potentially be unavailable to Orozco-Cortez given the nature of his crime and the
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fact that he did not reside in the United States for seven years prior to the initiation
of the immigration proceedings. See 28 U.S.C. § 1182(h). Under these
circumstances, Orozco-Cortez fails to establish that the waiver of removal would
have been granted. He therefore fails to establish prejudice.
DENIED.
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