Carlos Sajuan Ochoa v. Loretta E. Lynch , 639 F. App'x 425 ( 2016 )

FILED
NOT FOR PUBLICATION
FEB 18 2016
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
CARLOS ALFONSO SAJUAN OCHOA, No. 12-73621
Petitioner, Agency No. A087-102-846
v.
MEMORANDUM*
LORETTA E. LYNCH, Attorney General,
Respondent.
CARLOS ALFONSO SAJUAN OCHOA, No. 13-70543
Petitioner, Agency No. A087-102-846
v.
LORETTA E. LYNCH, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted January 4, 2016**
San Francisco, California
*
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).
Before: WALLACE and O’SCANNLAIN, Circuit Judges and HUFF,*** District
Judge.
Carlos Alfonso Sajuan Ochoa, a native and citizen of Mexico, petitions for
review of the Board of Immigration Appeals’ (Board) denial of a motion to reopen
his removal proceedings.1 We have jurisdiction under 8 U.S.C. § 1251(b), we
review for an abuse of discretion, see Minasyan v. Mukasey, 553 F.3d 1224, 1227
(9th Cir. 2009), and we deny the petition.
Ochoa was convicted in state court on counts of theft and burglary. On this
appeal, Ochoa argues that some of his convictions were recently vacated, and thus
he no longer has convictions of crimes involving moral turpitude, rendering him
eligible for cancellation of removal. In support of the motion to reopen, Ochoa
submitted a charging document demonstrating that his state court conviction under
California Penal Code section 484 was vacated and amended to a charge under
California Penal Code section 415, disturbing the peace. Ochoa contends the
***
The Honorable Marilyn L. Huff, District Judge for the U.S. District
Court for the Southern District of California, sitting by designation.
1
Ochoa has also filed a petition for review of the Board’s order dismissing
his appeal of the immigration judge’s denial of his application for asylum,
withholding of removal, and Convention Against Torture relief. But Ochoa has
waived any challenges to such order by failing to present any arguments regarding
it in his opening brief. See Rizk v. Holder, 629 F.3d 1083, 1091 n.3 (9th Cir.
2011).
2 13-70543
previous conviction was vacated due to a procedural error, and thus it may no
longer be considered in immigration proceedings. See Nath v. Gonzales, 467 F.3d
1185, 1189 (9th Cir. 2006).
The government has the burden to establish that a conviction remains valid
for immigration purposes. Id. Even if we assume, without deciding, that the
conviction does not remain valid, the Board properly concluded that Ochoa did not
sufficiently demonstrate prima facie eligibility for relief from removal to warrant
reopening proceedings. Lopez-Vasquez v. Holder, 706 F.3d 1072, 1080 (9th Cir.
2013).
The petitioner must support a motion to reopen with new evidence and
establish a prima facie case for the underlying relief sought. Ordonez v. I.N.S., 345
F.3d 777, 784–5 (9th Cir. 2003). A prima facie case is established when the
evidence reveals a reasonable likelihood that the statutory requirements for relief
have been satisfied. Id. Ochoa did not present any evidence in his application for
cancellation of removal to show a reasonable likelihood that his removal would
result in exceptional and extremely unusual hardship to his spouse, parent, or child.
8 U.S.C. § 1229b(b)(1)(D); see Garcia v. Holder, 621 F.3d 906, 912 (9th Cir.
2010).
3 13-70543
Ochoa’s brief argues that a showing of hardship is “a matter for the
immigration judge once proceedings are reopened.” But a motion to reopen is “the
proper way to introduce previously unavailable evidence,” Ordonez, 345 F.3d at
784, and the Board addressed Ochoa’s failure to make a prima facie showing of
extreme hardship in its denial order. As no evidence of hardship was previously
introduced and the record remains deficient, Ochoa has not established prima facie
eligibility for cancellation of removal.
PETITION FOR REVIEW DENIED.
4 13-70543