Gerardo Garcia-Perez v. Loretta E. Lynch , 656 F. App'x 347 ( 2016 )

FILED
NOT FOR PUBLICATION AUG 02 2016
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
GERARDO GARCIA-PEREZ, AKA No. 15-70019
Gerardo Rey Perez,
Agency No. A095-631-670
Petitioner,
v. MEMORANDUM*
LORETTA E. LYNCH, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted July 26, 2016**
Before: SCHROEDER, CANBY, and CALLAHAN, Circuit Judges.
Gerardo Garcia-Perez, a native and citizen of Mexico, petitions pro se for
review of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal
from an immigration judge’s order of removal, and denying his motion to remand.
Our jurisdiction is governed by 8 U.S.C. § 1252. We review for abuse of discretion
*
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).
the denial of a motion to remand and the denial of a motion for a continuance.
Vargas-Hernandez v. Gonzales, 497 F.3d 919, 923 (9th Cir. 2007). We review de
novo due process claims. Id. at 921. We deny in part and dismiss in part the
petition for review.
The BIA did not abuse its discretion in denying Garcia-Perez’s motion to
remand where Garcia-Perez failed to demonstrate that the new evidence he
submitted would likely have changed the outcome of his case. See Shin v.
Mukasey, 547 F.3d 1019, 1025 (9th Cir. 2008) (a motion to remand must show that
“if proceedings were reopened, the new evidence would likely change the result in
the case” (citation omitted)). To the extent Garcia-Perez contends that the BIA
failed to state its reasons and show proper consideration of relevant factors, these
contentions are not supported by the record. See Najmabadi v. Holder, 597 F.3d
983, 990 (9th Cir. 2010) (“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 perceive that it has heard and thought and not merely reacted.” (citation
and quotation marks omitted)).
We lack jurisdiction under 8 U.S.C. § 1252(a)(2)(B)(i) to review the
agency’s determination that Garcia-Perez did not merit relief from removal as a
matter of discretion. See Vilchez v. Holder, 682 F.3d 1195, 1198 (9th Cir. 2012)
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(the court lacks jurisdiction to review the denial of cancellation of removal in the
exercise of discretion); Esquival-Garcia v. Holder, 593 F.3d 1025, 1030 (9th Cir.
2010) (same, for voluntary departure).
The agency did not abuse its discretion in denying Garcia-Perez’s motion for
a continuance where he failed to show good cause. See 8 C.F.R. § 1003.29;
Sandoval-Luna v. Mukasey, 526 F.3d 1243, 1247 (9th Cir. 2008) (“The decision to
grant or deny a continuance is in the sound discretion of the judge and will not be
overturned except on a showing of clear abuse.” (citation and quotation marks
omitted)). Although Garcia-Perez contends that the BIA failed to address the
continuance, the BIA reviewed the evidence submitted with Garcia-Perez’s motion
to remand and concluded that such evidence would not alter the agency’s denial of
relief as a matter of discretion. See Najmabadi, 597 F.3d at 990. Accordingly,
Garcia-Perez’s due process claim based on the agency’s denial of the continuance
fails for lack of error and prejudice. See Lata v. INS, 204 F.3d 1241, 1246 (9th Cir.
2000) (requiring error and substantial prejudice to prevail on a due process claim).
To the extent Garcia-Perez contends that the agency violated due process
based on its denial of relief as a matter of discretion, we lack jurisdiction over this
claim because Garcia-Perez failed to exhaust it before the BIA. See Tijani v.
Holder, 628 F.3d 1071, 1080 (9th Cir. 2010).
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We do not consider the extra-record evidence discussed in Garcia-Perez’s
opening and reply briefs because the court’s review is normally limited to the
administrative record. See 8 U.S.C. § 1252(b)(4)(A) (judicial review is limited to
the administrative record); Dent v. Holder, 627 F.3d 365, 371 (9th Cir. 2010)
(stating standard for review of out-of-record evidence).
In light of this disposition, we need not address Garcia-Perez’s remaining
contentions regarding eligibility for relief.
PETITION FOR REVIEW DENIED in part; DISMISSED in part.
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