Javier Baeza-Castro v. Merrick Garland ( 2022 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS APR 29 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JAVIER BAEZA-CASTRO, AKA Juan No. 15-73176
Antonio Baeza, AKA Smiley Baeza,
Agency No. A074-111-136
Petitioner,
v. MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted April 14, 2022
Pasadena, California
Before: PAEZ, SMITH,** and BADE, Circuit Judges.
Javier Baeza-Castro, a citizen and native of Mexico who obtained lawful
permanent resident status in 1990, petitions for review of the Board of Immigration
Appeals’ (“BIA”) dismissal of his appeal challenging the Immigration Judge’s
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable D. Brooks Smith, United States Circuit Judge for the
U.S. Court of Appeals for the Third Circuit, sitting by designation.
(“IJ”) denial of his application for cancellation of removal. We lack jurisdiction
and therefore dismiss the petition.
1. We lack jurisdiction over Baeza-Castro’s argument that his conviction
for transportation of a controlled substance under Cal. Health & Safety Code
§ 11379(a) does not categorically constitute a conviction for an offense relating to
a controlled substance. As Baeza-Castro conceded at oral argument, he did not
exhaust this argument before the agency, which deprives us of jurisdiction to
consider it. Sola v. Holder, 720 F.3d 1134, 1135 (9th Cir. 2013) (per curiam) (“A
petitioner’s failure to raise an issue before the BIA generally constitutes a failure to
exhaust, thus depriving this court of jurisdiction to consider the issue.”).
2. Baeza-Castro also argues that the BIA violated his due process rights
by not conducting a “full and independent de novo review” of the discretionary
factors for cancellation of removal. But we do not have jurisdiction “to review the
merits of a discretionary decision to deny cancellation of removal.” Szonyi v. Barr,
942 F.3d 874, 896 (9th Cir. 2019) (as amended); see also 8 U.S.C. § 1252(a)(2)(B).
Although we may exercise jurisdiction over colorable due process claims,
Martinez-Rosas v. Gonzales, 424 F.3d 926, 930 (9th Cir. 2005), we do not have
jurisdiction to review “a challenge based upon the application of the law to the
facts of the particular case, even when that challenge is cloaked as a legal
challenge,” Figueroa v. Mukasey, 543 F.3d 487, 494 (9th Cir. 2008). Baeza-Castro
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argues, in essence, that the BIA erred in weighing the discretionary factors, and
“we do not have jurisdiction to reweigh the evidence underlying the” agency’s
discretionary determination. Mendez-Castro v. Mukasey, 552 F.3d 975, 979 (9th
Cir. 2009). To the extent Baeza-Castro argues that the BIA failed to apply de novo
review, he has not raised a colorable claim. Id. at 978–80 (holding that jurisdiction
exists over a claim that the BIA applied an incorrect legal standard but only if the
claim is colorable).
3. We also lack jurisdiction over Baeza-Castro’s argument that the BIA
violated his due process rights by improperly emphasizing negative equities and
minimizing positive equities. “Traditional ‘abuse of discretion’ challenges recast
as alleged due process violations do not constitute colorable constitutional claims
which would invoke our jurisdiction.” Torres-Aguilar v. INS, 246 F.3d 1267, 1271
(9th Cir. 2001). We may not review the merits of the BIA’s discretionary decision
to deny cancellation of removal and thus may not consider Baeza-Castro’s
challenge to that decision. Szonyi, 942 F.3d at 896.
4. Finally, we do not have jurisdiction over Baeza-Castro’s argument
that the BIA violated his due process rights by admitting an untimely Form I-213.
“[C]hallenges to procedural errors correctable by the administrative tribunal[] must
be exhausted before we undertake review.” Sola, 720 F.3d at 1136 (internal
quotation marks omitted). Baeza-Castro did not raise this issue before the BIA,
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which could have remedied any error in the IJ’s admission of the Form I-213. See
Tall v. Mukasey, 517 F.3d 1115, 1120 (9th Cir. 2008). Baeza-Castro was thus
required to exhaust this argument before the BIA, and we lack jurisdiction to
consider it. See Barron v. Ashcroft, 358 F.3d 674, 678 (9th Cir. 2004).
PETITION DISMISSED.
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