Galeano-Laguna v. Garland ( 2023 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 26 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
GORKY JAVIER GALEANO-LAGUNA, No. 21-785
Petitioner, Agency No. A077-868-721
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted October 18, 2023
San Francisco, California
Before: BEA, CHRISTEN, and JOHNSTONE, Circuit Judges.
Gorky Javier Galeano-Laguna (“Petitioner”) petitions for review of the Board
of Immigration Appeals’ (“BIA”) order dismissing his appeal of the Immigration
Judge’s (“IJ”) final written decision, which ordered his removal to Nicaragua on the
grounds that he is (1) inadmissible under 8 U.S.C. § 1182(a)(6)(A)(i) as an alien
present in the United States who has not been lawfully admitted or paroled and (2)
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
inadmissible under 8 U.S.C. § 1182(a)(2)(A)(i)(II) as an alien convicted of a state
law “relating to a controlled substance.” The parties are familiar with the facts, so
we discuss them here only where necessary. We have jurisdiction under 8 U.S.C.
§ 1252(a). We deny the petition.
We review the BIA’s factual findings for substantial evidence and questions
of law, including claims of due process violations, de novo. Grigoryan v. Barr, 959
F.3d 1233, 1239 (9th Cir. 2020). Where, as here, “the BIA issues its own decision
but relies in part on the immigration judge’s reasoning, we review both decisions.”
Flores-Lopez v. Holder, 685 F.3d 857, 861 (9th Cir. 2012).
1. While the BIA erroneously concluded that authentication of the 2004
Notice to Appear and Form I-213 was unnecessary to admit those documents to
prove Petitioner’s alienage, see Iran v. Immigr. & Naturalization Serv., 656 F.2d
469, 472 (9th Cir. 1981), Petitioner failed to prove that he was prejudiced by this
error, Hernandez v. Garland, 52 F.4th 757, 766 (9th Cir. 2022). The IJ relied on
additional evidence in the record—the Form I-94 and the Form I-512—to conclude
that Petitioner was a citizen of Nicaragua. The IJ found that both documents were
properly authenticated under 8 C.F.R. §§ 287.6(a), 1287.6(a). Petitioner does not
challenge whether these documents proved his alienage or whether they were
properly authenticated under that rule. Thus, he has not demonstrated prejudice.
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2. The BIA did not err in finding that the IJ did not abuse his discretion
by admitting into evidence state court records demonstrating that Petitioner was
charged and then convicted of violating a law “relating to a controlled substance”
and was therefore removable under 8 U.S.C. § 1182(a)(2)(A)(i)(II). Those
documents—a copy of the criminal complaint, and an electronic docket report from
Petitioner’s state criminal case for possession of cocaine—were properly
authenticated as certified copies of public records under Federal Rule of Evidence
902(4)(B). See Iran, 656 F.2d at 472 n.8. The Government attached to each
document a certificate that attested to the document’s authenticity. Fed. R. Evid.
902(4)(B). The certificates were signed by the Executive Clerk of the Superior Court
of California, County of Los Angeles—the court where Petitioner was charged and
convicted. See Fed. R. Evid. 902(1)(B). Both certificates bore the seal of that court.
Fed. R. Evid. 902(1)(A). We therefore reject Petitioner’s argument that these
documents were not properly authenticated. 1 The IJ did not abuse his discretion by
admitting them into evidence.
3. Assuming that Dent v. Holder, 627 F.3d 365 (9th Cir. 2010), entitled
Petitioner to his Alien File as a matter of due process, Petitioner failed to demonstrate
1
Because this is Petitioner’s only argument challenging his removability under 8
U.S.C. § 1182(a)(2)(A)(i)(II), we need not consider his challenge to the BIA’s
separate determination that he was also removable under 8 U.S.C.
§ 1182(a)(6)(A)(i).
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that the BIA erred in finding that the IJ’s denial of his Alien File request did not
prejudice him, id. at 373. Petitioner advances only one cogent prejudice argument:
that his Alien File may contain information explaining why his adjustment of status
application took several years to process, which could give him a colorable due
process argument against the Government. But “procedural delays, such as routine
processing delays,” of relief applications generally do not deny an alien due process
unless he “has a ‘legitimate claim of entitlement’ to have [his] application[] [for
relief from removal] adjudicated within a specified time.” Mendez-Garcia v. Lynch,
840 F.3d 655, 666 (9th Cir. 2016) (quoting Ruiz-Diaz v. United States, 703 F.3d 483,
487 (9th Cir. 2012)). Petitioner cites no authority entitling him to a timelier
processing of his adjustment of status application. Id. Thus, Petitioner did not prove
that the denial of his Alien File prejudiced him.
4. We agree with the BIA that Petitioner did not prove that the IJ violated
due process by denying Petitioner the opportunity to present evidence on certain
“crucial” issues. See Grigoryan, 959 F.3d at 1240. The record does not reflect that
the IJ denied Petitioner the chance to present evidence of his lawful admission into
the United States. Petitioner testified on his own behalf about this issue during his
March 2020 merits hearing. Nor does the record suggest that the IJ prevented
Petitioner from presenting evidence on (1) whether Petitioner received ineffective
assistance of counsel during his prior removal proceedings and (2) whether the
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Immigration and Customs Enforcement Immigration Detainer that the Department
of Homeland Security served Petitioner in 2018 violated the Fourth Amendment.
Petitioner presented evidence on both issues. Petitioner submitted an attorney
misconduct complaint that he filed against his former immigration lawyer, and a
copy of the allegedly unconstitutional Immigration Detainer.
5. Assuming the IJ denied Petitioner the opportunity to present evidence
(1) that his statements in the Form I-213 were coerced or (2) that the processing of
his adjustment of status application from 2000 was delayed, Petitioner did not
demonstrate “substantial prejudice.” Grigoryan, 959 F.3d at 1240 (citation omitted).
First, the Form I-213 was probative only of Petitioner’s alienage. As explained,
Petitioner does not dispute that other authenticated record evidence—the Form I-94
and Form I-512—independently established his alienage. Second, even if Petitioner
presented evidence demonstrating that the processing of his adjustment of status
application was delayed, this would not give rise to a colorable due process claim as
explained above. See Mendez-Garcia, 840 F.3d at 666.
6. Petitioner did not prove that the BIA erred in finding that the IJ properly
denied his motion to recuse the IJ. Vargas-Hernandez v. Gonzales, 497 F.3d 919,
926 (9th Cir. 2007). While the IJ characterized Petitioner’s counsel’s serial filings
of continuance motions and termination requests as a delay tactic and as raising
irrelevant issues, these comments “concerned [Petitioner’s] attorney’s conduct, not
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[Petitioner] or the merits of his case.” Id. at 927. They do not prove that the IJ “had
a deep-seated favoritism or antagonism [against Petitioner] that would make fair
judgment impossible.” Id. at 926.
7. Petitioner forfeited his argument that the IJ denied Petitioner due
process by failing to inform him of his eligibility for relief from removal. Cui v.
Garland, 13 F.4th 991, 999 n.6 (9th Cir. 2021). Petitioner’s brief “makes no
substantive argument” in support of this position beyond his conclusory statement
that the IJ “pre-judged” Petitioner’s eligibility for relief by finding him ineligible for
asylum, withholding of removal, and adjustment of status. Id.; see also Martinez-
Serrano v. I.N.S., 94 F.3d 1256, 1259–60 (9th Cir. 1996) (“Issues raised in a brief
that are not supported by argument are deemed abandoned.”).
8. The BIA did not abuse its discretion when it declined to consider the
merits of Petitioner’s challenge to the BIA’s July 2015 remand order. The BIA “may
address an argument by applying its default rules and explaining that it will not reach
the merits” of the argument, which is what the BIA did here. Honcharov v. Barr,
924 F.3d 1293, 1296 n.2 (9th Cir. 2019). The BIA refused to consider the merits of
Petitioner’s challenge after construing it as an untimely motion to reconsider its 2015
remand order.
PETITION DENIED.
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