Ruiz-Hernandez v. Garland ( 2023 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS AUG 8 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
SALVADOR RUIZ-HERNANDEZ, No. 21-751
Agency No.
Petitioner, A089-837-551
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted July 18, 2023**
Before: SCHROEDER, RAWLINSON, and BADE, Circuit Judges.
Salvador Ruiz-Hernandez, 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
cancellation of removal. Our jurisdiction is governed by 8 U.S.C. § 1252. We
review de novo questions of law and claims of due process violations in
*
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).
immigration proceedings. Mohammed v. Gonzales, 400 F.3d 785, 791-92 (9th
Cir. 2005). We deny the petition for review.
Ruiz-Hernandez’s claim that the BIA violated due process by affirming
without opinion the IJ’s decision fails because he has not shown error. See
Padilla-Martinez v. Holder, 770 F.3d 825, 830 (9th Cir. 2014) (“To prevail on a
due-process claim, a petitioner must demonstrate both a violation of rights and
prejudice.”). Ruiz-Hernandez did not argue before the BIA that the IJ violated
due process by failing to advise him of the availability of voluntary departure,
and as such, he did not exhaust the contention and we decline to address it. See
8 U.S.C. § 1252(d)(1) (exhaustion of administrative remedies required); see
also Santos-Zacaria v. Garland, 143 S. Ct. 1103, 1113-14 (2023) (section
1252(d)(1) is a non-jurisdictional claim-processing rule).
Ruiz-Hernandez’s contention that the hardship to his qualifying relatives
should have been assessed as of the time of his original hearing lacks merit. See
Mendez-Garcia v. Lynch, 840 F.3d 655, 663-65 (9th Cir. 2016) (applicant for
cancellation of removal must show hardship to a qualifying relative “as of the
time the IJ adjudicates the alien’s application”). To the extent Ruiz-Hernandez
contends the IJ violated due process by preventing him from seeking appellate
review of the original cancellation denial or by unfairly delaying his
proceedings, we reject these contentions as unsupported by the record.
The temporary stay of removal remains in place until the mandate issues.
PETITION FOR REVIEW DENIED.
2 21-751