Hernandez Ortega v. Garland ( 2023 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAY 17 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
PAMELA HERNANDEZ ORTEGA, Nos. 21-940
22-924
Petitioner,
Agency No. A213-082-558
v.
MERRICK B. GARLAND, Attorney MEMORANDUM*
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted May 9, 2023**
Pasadena, California
Before: HURWITZ and R. NELSON, Circuit Judges, and KANE,*** District
Judge.
In these consolidated petitions for review, Pamela Hernandez Ortega, a
native and citizen of Mexico, seeks review of orders of the Board of Immigration
*
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).
***
The Honorable Yvette Kane, United States District Judge for the
Middle District of Pennsylvania, sitting by designation.
Appeals (“BIA”) dismissing her appeal from a decision by an Immigration Judge
(“IJ”) denying her applications for asylum and related relief from removal and
denying her motions to remand and reopen. We have jurisdiction under 8 U.S.C.
§ 1252. We dismiss in part and deny in part the petition for review in No. 21-940
and deny the petition for review in No. 22-924.1
“Where, as here, the BIA agrees with the IJ decision and also adds its own
reasoning, we review the decision of the BIA and those parts of the IJ’s decision
upon which it relies.” Duran-Rodriguez v. Barr, 918 F.3d 1025, 1027–28 (9th Cir.
2019). We review the agency’s factual findings for substantial evidence, Conde
Quevedo v. Barr, 947 F.3d 1238, 1241 (9th Cir. 2020), and review constitutional
and legal questions de novo, Roy v. Barr, 960 F.3d 1175, 1181 (9th Cir. 2020). We
review the BIA’s decision to deny a motion to remand or reopen for abuse of
discretion and will not reverse unless the BIA acted arbitrarily, irrationally, or
contrary to law. Movsisian v. Ashcroft, 395 F.3d 1095, 1097–98 (9th Cir. 2005).
1. We lack jurisdiction to consider Hernandez Ortega’s claims that
changed circumstances excused her failure to file an asylum application within one
year of her arrival in the United States under 8 U.S.C. § 1158(a)(2) and that she is
eligible for special rule cancellation under 8 U.S.C. § 1229b(b)(2)(A). She did not
1
Accordingly, we deny the motions to stay removal (Dkt. No. 3 in both No. 21-
940 and No. 22-924) as moot.
2
present those claims to the agency and therefore failed to administratively exhaust
them. See Barron v. Ashcroft, 358 F.3d 674, 677 (9th Cir. 2004). Because the
untimeliness of her asylum application was dispositive, the BIA was not required
to address her other asylum-related contentions. See INS v. Bagamasbad, 429 U.S.
24, 25 (1976) (per curiam).
2. The agency did not abuse its discretion in concluding that Hernandez
Ortega’s state court conviction for assault with a deadly weapon was a particularly
serious crime, rendering her ineligible for both statutory withholding of removal
and withholding of removal under the Convention Against Torture (“CAT”). See 8
U.S.C. § 1231(b)(3)(B)(ii); 8 C.F.R. § 1208.16(d)(2). The agency considered the
relevant factors, see Bare v. Barr, 975 F.3d 952, 961–62 (9th Cir. 2020), and “we
cannot reweigh evidence to determine if the crime was indeed particularly
serious,” see Konou v. Holder, 750 F.3d 1120, 1127 (9th Cir. 2014) (quoting
Blandino-Medina v. Holder, 712 F.3d 1338, 1343 (9th Cir. 2013)). Further, the
record supports the BIA’s conclusion that Hernandez Ortega failed to produce
testimony or evidence “directly attributing” her conviction to her PTSD and
anxiety. See Benedicto v. Garland, 12 F.4th 1049, 1062 (9th Cir. 2021) (mental
illness not relevant to particularly-serious-crime analysis unless evidence shows
that the conviction was directly attributable to the illness).
3. Substantial evidence supports the BIA’s denial of CAT deferral of
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removal because Hernandez Ortega failed to establish that it is more likely than not
that she will be tortured by or with the acquiescence of the Mexican government if
she returned to Mexico. See Salguero Sosa v. Garland, 55 F.4th 1213, 1221–22
(9th Cir. 2022).
4. The BIA did not act arbitrarily, irrationally, or contrary to law in
denying Hernandez Ortega’s motion to remand because the unexplained, nunc pro
tunc reduction of her state court sentence did not undermine the IJ’s uncontested
conclusion that she was time-barred from seeking asylum.
5. The BIA did not act arbitrarily, irrationally, or contrary to law in
denying Hernandez Ortega’s motion to reopen based on her failure to support the
motion with “previously unavailable, material evidence.” See INS v. Abudu, 485
U.S. 94, 104 (1988). In seeking reopening, Hernandez Ortega offered mental
health records that she argued established her incompetency and undermined the
IJ’s particularly-serious-crime determination. But Hernandez Ortega was
represented by counsel at all but one appearance before the agency at which she
asserted that she was entitled to appointed counsel based on her incompetence.
The IJ found no bona fide doubt as to her ability to represent herself and invited
her to present additional information bearing on that issue, but Hernandez Ortega
thereafter retained new counsel and did not again assert her incompetency at
subsequent hearings, on direct appeal to the BIA, or in her motion to remand.
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These circumstances do not establish the unavailability of the mental health
records Hernandez Ortega offered in support of her motion to reopen. The
administrative record does not indicate that her counsel, whose effectiveness
Hernandez Ortega has not challenged, sought to obtain mental health records or
opinions that were otherwise previously unavailable. See Dada v. Mukasey, 554
U.S. 1, 14 (2008) (citing 1 C. Gordon, S. Mailman, & S. Yale-Loehr, Immigration
Law and Procedure § 3.05[8][c], at 3-76.34 (rev. ed. 2007) (evidence not
considered previously unavailable merely because the petitioner could have but
chose not to present evidence earlier)).
6. Hernandez Ortega has not established that the agency violated her due
process rights by preventing her from raising arguments in support of her claims
for relief from removal. To establish a due process violation, Hernandez Ortega
must demonstrate (1) that her removal proceedings were “so fundamentally unfair
that [she] was prevented from reasonably presenting h[er] case” and (2) “prejudice,
which means that the outcome of the proceeding may have been affected by the
alleged violation.” Lacsina Pangilinan v. Holder, 568 F.3d 708, 709 (9th Cir.
2009) (quoting Ibarra-Flores v. Gonzales, 439 F.3d 614, 620–21 (9th Cir. 2006)).
Hernandez Ortega has not established fundamental unfairness. She was
almost always represented by counsel, and her motion to reopen did not assert a
claim of ineffective assistance of counsel. See Benedicto, 12 F.4th at 1062 (“The
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proper way to raise and exhaust an ineffective assistance of counsel claim in this
situation is through a motion to reopen before the agency.”). The IJs did not
prohibit her from introducing evidence or impede or curtail her testimony. And to
the extent she argues that the agency misapplied case law to the facts of her case,
that argument is, at bottom, an “abuse of discretion claim[] recast as [a] due
process violation[] . . . .” See Sanchez-Cruz v. INS, 255 F.3d 775, 779 (9th Cir.
2001). Moreover, Hernandez Ortega has failed to establish prejudice from any
asserted due process violation.
NO. 21-940: PETITION FOR REVIEW DISMISSED IN PART AND
DENIED IN PART.
NO. 22-924: PETITION FOR REVIEW DENIED.
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