Berta Cruz v. Merrick Garland ( 2021 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 22 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
BERTA AMPARO CRUZ, No. 18-72929
Petitioner, Agency No. A070-939-781
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of Orders of the
Board of Immigration Appeals
Submitted March 16, 2021**
Before: GRABER, R. NELSON, and HUNSAKER, Circuit Judges.
Berta Amparo Cruz, a native and citizen of El Salvador, petitions for review
of the Board of Immigration Appeals’ (“BIA”) orders dismissing her appeals from
an immigration judge’s (“IJ”) decisions denying her applications for special rule
cancellation of removal under § 203 of the Nicaraguan Adjustment and Central
*
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).
American Relief Act (“NACARA”), asylum, withholding of removal, relief under
the Convention Against Torture (“CAT”), and Temporary Protected Status
(“TPS”). Our jurisdiction is governed by 8 U.S.C. § 1252. We review de novo
questions of law, including whether a state statutory crime qualifies as an
aggravated felony. Jauregui-Cardenas v. Barr, 946 F.3d 1116, 1118 (9th Cir.
2020). We review de novo due process claims in immigration proceedings. Jiang
v. Holder, 754 F.3d 733, 738 (9th Cir. 2014). We deny in part and dismiss in part
the petition for review.
The BIA did not error in concluding that Cruz’s conviction under California
Health and Safety Code § 11375(b) is an aggravated felony where Cruz does not
meaningfully challenge the divisibility of the statute and the judicially noticeable
documents unambiguously establish that her conviction was for possessing
Diazepam for sale. See 8 U.S.C. § 1101(a)(43)(B); see also United States v.
Martinez-Lopez, 864 F.3d 1034, 1040-41 (9th Cir. 2017) (en banc) (holding that a
similar California controlled substance statute is divisible with respect to the listed
substances); Coronado v. Holder, 759 F.3d 977, 985-86 (9th Cir. 2014) (same).
Cruz’s contention that the agency should have analyzed a version of the statute that
went into effect after her conviction fails. See Cortes-Maldonado v. Barr, 978
F.3d 643, 648 (9th Cir. 2020) (analyzing the statute of conviction as it existed at
the time of petitioner’s conviction). Cruz’s contention that the certified electronic
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docket must use the phrase “as charged in the complaint” is foreclosed by United
States v. Torre-Jimenez, 771 F.3d 1163, 1169 (9th Cir. 2014) (“[O]ur precedent
squarely forecloses the argument that . . . the phrase ‘as charged in the Information
(or Indictment)’ is not required where the documents are unambiguous.”). We lack
jurisdiction to consider Cruz’s unexhausted contention regarding whether valium is
a variant of Diazepam. See Barron v. Ashcroft, 358 F.3d 674, 677-78 (9th Cir.
2004) (court lacks jurisdiction to review claims not presented to the agency).
Thus, the BIA did not err in concluding Cruz was statutorily barred from obtaining
NACARA cancellation of removal where she was convicted of an aggravated
felony. See 8 C.F.R. § 1240.61(b) (NACARA relief not available to an alien
convicted of an aggravated felony).
In her opening brief, Cruz does not raise any challenge to the agency’s
determination that she failed to establish eligibility for asylum, withholding of
removal, CAT, or TPS. See Lopez-Vasquez v. Holder, 706 F.3d 1072, 1079-80
(9th Cir. 2013) (issues not specifically raised and argued in a party’s opening brief
are waived).
Cruz’s contentions that the agency violated her right to due process fail. See
Lata v. INS, 204 F.3d 1241, 1246 (9th Cir. 2000) (requiring error and prejudice to
prevail on a due process claim). To the extent Cruz contends her right to due
process was violated because the IJ did not act as a neutral arbiter, we lack
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jurisdiction to consider the contention. See Barron, 358 F.3d at 677-78.
On February 27, 2019, the court granted a stay of removal. The stay of
removal remains in place until issuance of the mandate.
PETITION FOR REVIEW DENIED in part; DISMISSED in part.
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