Jose Martinez Garcia v. Loretta E. Lynch

FILED
NOT FOR PUBLICATION DEC 15 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOSE MANUEL MARTINEZ GARCIA, No. 14-73702
AKA Jose Manuel Martinez,
Agency No. A206-407-484
Petitioner,
v. MEMORANDUM*
LORETTA E. LYNCH, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted December 9, 2015**
Before: WALLACE, RAWLINSON, and IKUTA, Circuit Judges.
Jose Manuel Martinez Garcia, 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
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
review de novo questions of law, Carrillo v. Holder, 781 F.3d 1155, 1157 (9th Cir.
2015), and review for abuse of discretion the denial of a motion for remand,
Movsisian v. Ashcroft, 395 F.3d 1095, 1097-98 (9th Cir. 2005). We deny in part
and dismiss in part the petition for review.
The agency correctly concluded that Martinez Garcia’s 2014 conviction
under California Penal Code § 273.5(a) is a categorical crime of domestic violence
under 8 U.S.C. § 1227(a)(2)(E)(i). See Carrillo, 781 at 1157-60 (holding that a
materially similar version of Cal. Penal Code § 273.5(a) is categorically a crime of
domestic violence under 8 U.S.C. § 1227(a)(2)(E)(i)); Banuelos-Ayon v. Holder,
611 F.3d 1080, 1081, 1083-86 (9th Cir. 2010) (holding that Cal. Penal Code
§ 273.5(a) is categorically a crime of domestic violence and rejecting the argument
that Cal. Penal Code § 273.5(a) does not require force and injury). Martinez
Garcia’s contentions to the contrary are unavailing. Accordingly, the agency
correctly concluded that Martinez Garcia is ineligible for cancellation of removal.
See 8 U.S.C. §§ 1229b(b)(1)(C), 1227(a)(2)(E)(i).
The BIA properly concluded that it could not consider Martinez Garcia’s
contentions that he was not guilty of the criminal offenses for which he was
convicted and that he was subjected to due process violations in his criminal
proceedings, as the agency may not entertain a collateral attack on a judgment of
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conviction, unless that judgment is void on its face. See Ramirez-Villalpando v.
Holder, 645 F.3d 1035, 1041 (9th Cir. 2010) (“A petitioner may not collaterally
attack his state court conviction on a petition for review of a BIA decision.”).
Contrary to Martinez Garcia’s contention, the BIA did not err in declining to
reach the question of whether his convictions constituted crimes involving moral
turpitude, where its determination that the convictions were crimes of domestic
violence was dispositive. See Simeonov v. Ashcroft, 371 F.3d 532, 538 (9th Cir.
2004) (“As a general rule courts and agencies are not required to make findings on
issues the decision of which is unnecessary to the results they reach.” (citation and
quotation marks omitted)).
To the extent Martinez Garcia challenges the BIA’s decision not to remand
to the IJ for Martinez Garcia to file a U visa application, the BIA did not abuse its
discretion, where Martinez Garcia provided no evidence of prima facie eligibility.
See Shin v. Mukasey, 547 F.3d 1019, 1025 (9th Cir. 2008) (“Aliens who seek to
remand or reopen proceedings to pursue relief bear a heavy burden of proving that,
if proceedings were reopened, the new evidence would likely change the result in
the case.” (citation and internal quotation marks omitted)); Matter of Sanchez Sosa,
25 I. & N. Dec. 807, 812-16 (BIA 2012) (discussing how a petitioner may establish
prima facie eligibility for a U visa such that a continuance or remand might be
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warranted).
We lack jurisdiction to consider Martinez Garcia’s unexhausted contentions
that his convictions should not count for immigration purposes, his bond is
excessive, the conditions of his detention violate due process, and that he may be
eligible for reopening before the agency. See Tijani v. Holder, 628 F.3d 1071,
1080 (9th Cir. 2010) (the court lacks jurisdiction to consider legal claims not
presented in an alien’s administrative proceedings before the agency).
Martinez Garcia’s remaining contentions are unavailing.
Martinez Garcia’s December 4, 2015, “motion to proceed with petition for
review” is denied as moot.
PETITION FOR REVIEW DENIED in part; DISMISSED in part.
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