Victor Hidalgo-Jarquin v. Eric Holder, Jr. ( 2011 )

FILED
NOT FOR PUBLICATION OCT 6 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
VICTOR HIDALGO-JARQUIN, a.k.a. No. 09-72043
Victor Manuel Hidalgo-Jaquin,
Agency No. A040-199-424
Petitioner,
v. MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted September 27, 2011 **
Before: SILVERMAN, W. FLETCHER, and MURGUIA, Circuit Judges.
Victor Hidalgo-Jarquin, a native and citizen of Nicaragua, petitions pro se
for review of the Board of Immigration Appeals’ order summarily affirming an
immigration judge’s removal order. Our jurisdiction is governed by 8 U.S.C.
§ 1252. We review for abuse of discretion the denial of a motion for a
*
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).
continuance, Ahmed v. Holder, 569 F.3d 1009, 1012 (9th Cir. 2009), and review de
novo constitutional claims, Khan v. Holder, 584 F.3d 773, 776 (9th Cir. 2009). We
deny in part and dismiss in part the petition for review.
The agency did not abuse its discretion in denying Hidalgo-Jarquin’s request
for a continuance, where Hidalgo-Jarquin had already received multiple
continuances and the delay caused inconvenience to the agency. See Ahmed, 569
F.3d at 1013-14; cf. Cui v. Mukasey, 538 F.3d 1289, 1293-95 (9th Cir. 2008).
Hidalgo-Jarquin’s equal protection argument regarding waivers under
8 U.S.C. § 1182(h) is unavailing. See Taniguchi v. Schultz, 303 F.3d 950, 958 (9th
Cir. 2002) (holding that a rational basis exists for excluding permanent residents,
as “aggravated felon LPRs could be viewed as less deserving of a ‘second chance’
than non-LPRs”) (citation omitted).
In his opening brief, Hidalgo-Jarquin fails to address, and therefore has
waived any challenge to, the agency’s determination that his conviction for
possession of a controlled substance for sale under California Health & Safety
Code § 11378 constitutes a drug trafficking aggravated felony under 8 U.S.C.
§ 1101(a)(43)(B), rendering him removable under 8 U.S.C. § 1227(a)(2)(A)(iii).
See Kumar v. Gonzales, 444 F.3d 1043, 1055 (9th Cir. 2006) (“[W]e will not
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ordinarily consider matters on appeal that are not specifically and distinctly argued
in appellant’s opening brief.”) (citation omitted).
Hidalgo-Jarquin’s contention that application of the grounds of removability
to him is a violation of substantive due process, in light of the equities present in
his case, is unavailing. See Padilla-Padilla v. Gonzales, 463 F.3d 972, 978-79 (9th
Cir. 2006) (“[O]ur cases have long recognized the power to expel or exclude aliens
as a fundamental sovereign attribute exercised by the Government’s political
departments largely immune from judicial control.”) (citation and quotations
omitted). Hidalgo-Jarquin’s contention that application of the grounds of
removability to him violates international law is likewise unavailing. See id. at
979-99.
We lack jurisdiction to consider the remaining contentions raised by
Hidalgo-Jarquin in his opening brief, as they were not presented to the agency. See
Barron v. Ashcroft, 358 F.3d 674, 677-78 (9th Cir. 2004).
The government’s “motion to strike new evidence submitted with
petitioner’s opening brief” is granted. See 8 U.S.C. § 1252(b)(4)(A) (“[T]he court
of appeals shall decide the petition only on the administrative record on which the
order of removal is based.”).
PETITION FOR REVIEW DENIED in part; DISMISSED in part.
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