Virgilio Sanches-Sanchez v. Loretta E. Lynch , 620 F. App'x 598 ( 2015 )

FILED
NOT FOR PUBLICATION OCT 20 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
VIRGILIO SANCHES-SANCHEZ, AKA No. 13-74436
Virgilio Sanchez-Sanchez,
Agency No. A200-975-934
Petitioner,
v. MEMORANDUM*
LORETTA E. LYNCH, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted October 14, 2015**
Before: SILVERMAN, BYBEE, and WATFORD, Circuit Judges.
Virgilio Sanches-Sanchez, a native and citizen of Mexico, petitions for
review of the Board of Immigration Appeals’ (“BIA”) order denying his motion to
reconsider its dismissal of his appeal from an immigration judge’s decision
denying cancellation of removal and a motion for a continuance, and the BIA’s
*
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).
order denying his motion to reopen. We have jurisdiction under 8 U.S.C. § 1252.
We review for abuse of discretion the denial of a motion to reopen or reconsider,
and review de novo questions of law and constitutional claims. Mohammed v.
Gonzales, 400 F.3d 785, 791-92 (9th Cir. 2005). We deny the petition for review.
The BIA did not abuse its discretion in denying Sanches-Sanchez’ motion to
reconsider, where the motion failed to establish any error of law or fact in the
BIA’s prior order dismissing Sanches-Sanchez’s appeal. See 8 C.F.R.
§ 1003.2(b)(1) (“A motion to reconsider shall state the reasons for the motion by
specifying the errors of fact or law in the prior [BIA] decision and shall be
supported by pertinent authority.”)
First, Sanches-Sanchez did not establish error in the BIA’s conclusion that
he failed to show eligibility for cancellation of removal, where the record
established that he had been convicted of a domestic violence offense under
California Penal Code § 273.5. See 8 U.S.C. § 1229b(b)(1)(C) (specifying classes
of criminal convictions that preclude a grant of cancellation of removal); 8 C.F.R.
§ 1240.8(d) (“If the evidence indicates that one or more of the grounds for
mandatory denial of the application for relief may apply, the alien shall have the
burden of proving by a preponderance of the evidence that such grounds do not
apply.”). The agency properly relied on an FBI database print out and Sanches-
2 13-74436
Sanchez’s own admissions to establish the existence of the conviction. See 8
C.F.R. § 1003.41(d) (in addition to the conviction documents enumerated in the
regulation, “[a]ny other evidence that reasonably indicates the existence of a
criminal conviction may be admissible as evidence thereof”); Lata v. INS, 204 F.3d
1241, 1246 (9th Cir. 2000) (to prevail on a due process challenge, an alien must
show error and prejudice). Contrary to Sanches-Sanchez’s contention, the
limitation on the use of certain documents to prove a conviction under the modified
categorical analysis is inapplicable here because California Penal Code Ҥ 273.5 is
categorically a crime of domestic violence.” Carrillo v. Holder, 781 F.3d 1155
(9th Cir. 2015).
Second, Sanches-Sanchez did not establish error in the BIA’s conclusion
that he failed to establish good cause for a continuance. See Sandoval-Luna v.
Mukasey, 526 F.3d 1243, 1247 (9th Cir. 2008).
The BIA also did not abuse its discretion in denying Sanches-Sanchez’s
motion to reopen to apply for asylum, where Sanches-Sanchez’s own statement
was the only evidence he submitted in support of his motion and the statement
failed to demonstrate prima facie eligibility for relief. See Shin v. Mukasey, 547
F.3d 1019, 1025 (9th Cir. 2008) (a motion to reopen must “be supported by
affidavits or other evidentiary materials demonstrating prima facie eligibility for
3 13-74436
the relief sought” (citing 8 C.F.R. § 1003.2(c)(1)). Furthermore, the record does
not support Sanches-Sanchez’s contention that the BIA made an impermissible
credibility determination in evaluating his statement.
Finally, Sanches-Sanchez’s contention that the BIA abused its discretion by
denying his motions in the absence of an opposition from the government is
without merit. See 8 C.F.R. § 1003.2(a) (“[t]he decision to grant or deny a motion
to reopen or reconsider is within the discretion of the Board”).
PETITION FOR REVIEW DENIED.
4 13-74436