Antonio Gomez-Beltran v. William Barr ( 2020 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS FEB 5 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ANTONIO GOMEZ-BELTRAN, No. 16-72518
17-70740
Petitioner,
Agency No. A099-485-184
v.
WILLIAM P. BARR, Attorney General, MEMORANDUM*
and ORDER
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted February 3, 2020**
Phoenix, Arizona
Before: GRABER, HURWITZ, and MILLER, Circuit Judges.
Antonio Gomez-Beltran, a native and citizen of Mexico, petitions for review
of two decisions of the Board of Immigration Appeals (“BIA”): one denying a
motion to reopen, and the other denying a motion to remand and dismissing an
appeal from the order of an immigration judge (“IJ”) denying cancellation of
*
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).
removal. We have jurisdiction under 8 U.S.C. § 1252. We dismiss the petitions in
part and otherwise deny them.1
1. The proceedings before the IJ were not legally defective merely
because the interpreter was not formally sworn in. The interpreter was properly
sworn in during an earlier hearing. See 8 C.F.R. § 1240.5. Any purported
deficiencies in the translation did not “prejudice[] the outcome of [the] hearing.”
Hartooni v. INS, 21 F.3d 336, 340 (9th Cir. 1994). Gomez does not identify any
mistranslation relevant to his criminal history, the issue that formed the basis for the
denial of relief.
2. The IJ did not err in failing to employ additional procedural safeguards
because of Gomez’s mental state. Gomez did not show indicia of mental
incompetency and was afforded ample opportunity to consult with his attorney and
to present evidence. See Salgado v. Sessions, 889 F.3d 982, 987–89 (9th Cir. 2018).
Nor did the BIA engage in improper fact-finding in rejecting this argument. Because
Gomez raised the competency issue for the first time before the BIA, the BIA was
required to assess the existing record to determine whether further proceedings were
necessary. See Mejia v. Sessions, 868 F.3d 1118, 1121–22 (9th Cir. 2017).
3. We lack jurisdiction to review the discretionary denial of cancellation
1
We grant the government’s motion to take judicial notice of a subsequent
decision of the BIA denying Gomez’s motion for reconsideration. See Dent v.
Holder, 627 F.3d 365, 371 (9th Cir. 2010) (taking judicial notice of agency records).
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of removal. Bazua-Cota v. Gonzales, 466 F.3d 747, 749 (9th Cir. 2006) (per curiam).
We therefore do not address the agency’s alternative finding that Gomez could not
establish the good moral character required for cancellation of removal. See 8 U.S.C.
§§ 1101(f)(6), 1229b(b)(1)(B).
4. The BIA did not abuse its discretion in denying Gomez’s motion to
remand for ineffective assistance of counsel. See Kwong v. Holder, 671 F.3d 872,
880 (9th Cir. 2011) (stating standard of review). Gomez did not provide his former
attorney with an “adequate opportunity to respond” to the allegations of
ineffectiveness. See Reyes v. Ashcroft, 358 F.3d 592, 598–99 (9th Cir. 2004) (citing
Matter of Lozada, 19 I. & N. Dec. 637, 639 (B.I.A. 1988)). Although “we have not
hesitated to address ineffective assistance of counsel claims even when an alien fails
to comply strictly with Lozada,” Ray v. Gonzales, 439 F.3d 582, 588 (9th Cir. 2006),
this is not a case in which “the record shows a clear and obvious case of ineffective
assistance,” Rodriguez-Lariz v. INS, 282 F.3d 1218, 1227 (9th Cir. 2002).
5. The BIA did not abuse its discretion in refusing to reopen proceedings
to allow Gomez to apply for adjustment of status, asylum, withholding of removal,
and protection under the Convention Against Torture (“CAT”). The BIA assumed
Gomez’s eligibility for adjustment of status but reasonably concluded that his
significant misrepresentations before the IJ disentitled him to this discretionary
relief. See Singh v. Holder, 643 F.3d 1178, 1181 (9th Cir. 2011). The BIA also
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reasonably concluded that the evidence in support of the applications for asylum,
withholding of removal, and CAT protection could have been presented at his prior
proceedings before the IJ. See 8 C.F.R. § 1003.2(c)(1).
6. Because Gomez has not shown legal or constitutional error, we lack
jurisdiction to review the BIA’s decision not to invoke its sua sponte authority to
remand proceedings. See Menendez v. Whitaker, 908 F.3d 467, 471 (9th Cir. 2018).
7. Gomez’s motion to remand to terminate proceedings for lack of
jurisdiction is denied. A notice to appear need not include the date and time of the
hearing to vest jurisdiction. See Karingithi v. Whitaker, 913 F.3d 1158, 1160–62
(9th Cir. 2019).
PETITIONS FOR REVIEW DENIED IN PART, DISMISSED IN PART.
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