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 2021-08

Luis Garcia-Estrada v. Merrick Garland ( 2021 )


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  •                               NOT FOR PUBLICATION                        FILED
UNITED STATES COURT OF APPEALS                       AUG 20 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
LUIS ENRIQUE GARCIA-ESTRADA,                    No.    15-70845
Luis Enrique Estrada, AKA Luis Enrique
Garcia,                                         Agency No. A087-810-125
Petitioner,
MEMORANDUM*
v.
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted August 17, 2021**
Before:      SILVERMAN, CHRISTEN, and LEE, Circuit Judges.
Luis Enrique Garcia-Estrada, a native and citizen of Mexico, petitions pro se
for review of the Board of Immigration Appeals’ (“BIA”) order dismissing his
appeal from an immigration judge’s (“IJ”) decision denying his application for
*
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).
cancellation of removal and his motion for a continuance. Our jurisdiction is
governed by
    8 U.S.C. § 1252
    . We review de novo questions of law. Jauregui-
Cardenas v. Barr,
    946 F.3d 1116
    , 1118 (9th Cir. 2020). We review for abuse of
discretion the denial of a motion for a continuance. Sandoval-Luna v. Mukasey,
    526 F.3d 1243
    , 1246 (9th Cir. 2008). We deny in part and dismiss in part the
petition for review.
The BIA properly denied cancellation of removal where Garcia-Estrada
failed to meet his burden of proof to establish his conviction under California
Health & Safety Code § 11377(a) was not for a controlled substance offense. See
    8 U.S.C. §§ 1182
    (a)(2)(A)(i)(II), 1229b(b)(1)(C); Pereida v. Wilkinson,
    141 S. Ct. 754
    , 766 (2021) (an inconclusive conviction record is insufficient to meet
applicant’s burden of proof to show eligibility for relief).
The agency did not abuse its discretion in denying Garcia-Estrada’s fourth
request for a continuance where he failed to show good cause to grant it. See
    8 C.F.R. § 1003.29
    ; Gonzalez v. INS,
    82 F.3d 903
    , 908 (9th Cir. 1996) (no abuse of
discretion in denying request for continuance where multiple continuances had
already been granted).
We lack jurisdiction to consider Garcia-Estrada’s contentions as to
reopening, suspension of deportation, extreme and exceptionally unusual hardship,
prosecutorial discretion, ineffective assistance of counsel, administrative closure,
2                                   15-70845
and relief under an unspecified 2014 Obama executive order because he failed to
raise them before the BIA. See Barron v. Ashcroft,
    358 F.3d 674
    , 677-78 (9th Cir.
2004) (court lacks jurisdiction to review claims not presented below).
We do not address Garcia-Estrada’s contention that the IJ failed to exercise
discretion because the BIA did not reach this issue in denying relief, see Santiago-
Rodriguez v. Holder,
    657 F.3d 820
    , 829 (9th Cir. 2011) (“In reviewing the decision
of the BIA, we consider only the grounds relied upon by that agency.” (citation and
internal quotation marks omitted)), and Garcia-Estrada does not argue that was in
error, see Martinez-Serrano v. INS,
    94 F.3d 1256
    , 1259-60 (9th Cir. 1996) (issues
not specifically raised and argued in a party’s opening brief are waived).
Garcia-Estrada’s contentions that the agency failed to consider facts and
adequately explain its reasoning, and that the BIA erred by failing to consider the
due process rights of his United States children, fail. See Lata v. INS,
    204 F.3d 1241
    , 1246 (9th Cir. 2000) (requiring error to prevail on a due process claim); see
also Najmabadi v. Holder,
    597 F.3d 983
    , 990 (9th Cir. 2010) (agency need not
write an exegesis on every contention); Fernandez v. Gonzales,
    439 F.3d 592
    , 603
(9th Cir. 2006) (petitioner did not overcome the presumption that the BIA
reviewed the record).
3                                   15-70845
We do not consider the materials Garcia-Estrada submitted with his opening
brief that are not part of the administrative record. See Fisher v. INS,
    79 F.3d 955
    ,
963-64 (9th Cir. 1996) (en banc).
The temporary stay of removal remains in place until issuance of the
mandate.
PETITION FOR REVIEW DENIED in part; DISMISSED in part.
4                                   15-70845