Marco Mendez v. Merrick Garland

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS SEP 17 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARCO ANTONIO RUIZ MENDEZ, No. 14-72747
Petitioner, Agency No. A206-516-494
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted September 14, 2021**
Before: PAEZ, NGUYEN, and OWENS, Circuit Judges.
Marco Antonio Ruiz Mendez, 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 finding him removable and
denying his application for cancellation of removal. Our jurisdiction is governed
*
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).
by 8 U.S.C. § 1252. We review de novo questions of law. Coronado v. Holder,
759 F.3d 977, 982 (9th Cir. 2014). We deny in part and dismiss in part the petition
for review.
The agency did not err in determining that Ruiz Mendez failed to establish
that his offense under California Health & Safety Code (“CHSC”) § 11377(a) was
not a controlled substance violation that renders him removable and ineligible for
cancellation of removal. See 8 U.S.C. §§ 1182(a)(2)(A)(i)(II), 1227(a)(2)(B)(i),
1229b(b)(1)(C); Coronado, 759 F.3d at 984-86 (holding that CHSC § 11377(a) is
divisible and subject to the modified categorical approach, and relying on the
minute order and complaint to conclude the conviction was for possession of
methamphetamine and thus a violation of a law relating to a controlled substance);
see also Pereida v. Wilkinson, 141 S. Ct. 754, 766 (2021) (an inconclusive
conviction record is insufficient to meet applicant’s burden of proof to show
eligibility for relief). To the extent Ruiz Mendez contends that the agency erred in
pretermitting his application for cancellation of removal because he was seeking
post-conviction relief, his contention fails because the conviction was final for
immigration purposes. See Planes v. Holder, 652 F.3d 991, 996 (9th Cir. 2011)
(conviction is final for immigration purposes where a judgment of guilt has been
entered and a punishment imposed, even where an appeal or collateral attack is
pending).
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We do not address Ruiz Mendez’s contentions as to whether he satisfied the
continuous physical presence and exceptional and extremely unusual hardship
requirements for cancellation of removal because the BIA did not deny relief on
those grounds. See Santiago-Rodriguez v. Holder, 657 F.3d 820, 829 (9th Cir.
2011) (“In reviewing the decision of the BIA, we consider only the grounds relied
upon by that agency.” (citation and internal quotation marks omitted)). Thus, Ruiz
Mendez’s cancellation of removal claim fails.
We lack jurisdiction to consider Ruiz Mendez’s contentions that the IJ
committed procedural errors by failing to adequately develop the record as to his A
file and alienage. See Barron v. Ashcroft, 358 F.3d 674, 677-78 (9th Cir. 2004)
(court lacks jurisdiction to review claims not presented below).
Ruiz Mendez’s derivative citizenship claim fails because he does not point
to any evidence showing that he satisfies the statutory requirements for derivative
citizenship. See 8 U.S.C. § 1431(a)(3) (requiring that the child resides in the
United States “pursuant to a lawful admission for permanent residence”).
PETITION FOR REVIEW DENIED in part; DISMISSED in part.
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