Rigoberto Lara Corral v. Merrick Garland ( 2023 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 14 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
RIGOBERTO LARA CORRAL, AKA No. 19-72703
Servacio Arondondo Saludo, AKA Gervacio
Arredondo Salido, AKA Israel L. Corral, Agency No. A077-137-123
AKA Rodolfo Landeros-Lopez, AKA Israel
Lara Corral, AKA Rodolfo Lara Corral,
AKA Israel Lara-Corral, AKA Martin Lugo, MEMORANDUM*
AKA Roberto Luiz Orlinas, AKA Lambreiro
Nabardo, AKA Lamberto Navarro, AKA
Hugo Ruiz Olivas,
Petitioner,
v.
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted March 10, 2023**
Las Vegas, Nevada
Before: GRABER, CLIFTON, and BENNETT, Circuit Judges.
*
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).
Petitioner Rigoberto Lara Corral, a native and citizen of Mexico, timely
seeks review of the Board of Immigration Appeals’ (BIA) dismissal of his appeal
from an immigration judge’s (IJ) denial of cancellation of removal. Because the
BIA adopted the IJ’s decision and added its own reasoning, we review both
decisions. Aguilar Fermin v. Barr, 958 F.3d 887, 891 (9th Cir. 2020). We review
legal questions de novo. Id. at 891–92. Applying those standards, we dismiss the
petition.
Before us, Petitioner does not challenge the BIA’s conclusion that he was
ineligible for cancellation of removal because he was incarcerated for more than
180 days on account of his 2015 Arizona felony conviction. See 8 U.S.C.
§ 1229b(b)(1)(B) (requiring “good moral character” during the 10 years preceding
the filing of an application for cancellation of removal); 8 U.S.C. § 1101(f)(7)
(providing that a person cannot be found to have good moral character, as a matter
of law, if incarcerated for 180 days or more during the relevant period). Instead,
he argues that he was eligible for voluntary departure, and he argues that the IJ
violated his right to due process by failing to allow him to seek pre-decision
voluntary departure and by failing to advise him of his alleged eligibility for that
relief.
Petitioner never raised those arguments to the BIA, and the BIA held that he
had waived any argument concerning voluntary departure. Petitioner’s only brief
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to the BIA, which Petitioner labeled as a “Supplemental or rather Substituted
Brief,” raised a single issue: that his notice to appear did not provide sufficient
information to establish jurisdiction under Pereira v. Sessions, 138 S. Ct. 2105
(2018). When a petitioner files a brief, we ordinarily consider as exhausted only
those issues raised and argued in the brief before the BIA. Abebe v. Mukasey, 554
F.3d 1203, 1207–08 (9th Cir. 2009) (en banc) (per curiam). But even if we
examine Petitioner’s notice of appeal, because his brief was labeled
“supplemental,” the notice of appeal also fails to raise the relevant issue with
appropriate specificity. See id. at 1208 (“When a petitioner files no brief and relies
entirely on the notice of appeal to make an immigration argument, . . . the notice of
appeal serves in lieu of a brief[.]”). That notice argued only that the IJ abused his
discretion by failing to fully develop the factual record and by failing to allow the
Petitioner to present evidence in violation of his due process rights. The notice
never raised the arguments that Petitioner now raises to us. See Nolasco-Amaya v.
Garland, 14 F.4th 1007, 1013 (9th Cir. 2021) (“[The notice of appeal] did not
indicate which facts were in contention and how the IJ misinterpreted the
evidence.” (citation and internal quotation marks omitted)). Petitioner’s due
process claim therefore was unexhausted before the BIA, and we lack jurisdiction
over it. Abebe, 554 F.3d at 1208.
Petition DISMISSED.
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