Francisco Rivas Bach Mejia v. Eric Holder, Jr.

FILED
NOT FOR PUBLICATION SEP 10 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
FRANCISCO RIVAS BACH MEJIA; No. 11-70075
VERONICA LISETTE QUINTAN
RIVAS BACH; REBECA MARIA RIVAS Agency Nos. A098-846-358
BACH QUINTANILLA; DIEGO A098-846-359
FRANCISCO RIVAS BACH A098-846-360
QUINTANILLA, A098-846-361
Petitioners,
MEMORANDUM *
v.
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
FRANCISCO RIVAS BACH MEJIA; No. 11-72326
VERONICA LISETTE QUINTAN
RIVAS BACH; REBECA MARIA RIVAS Agency Nos. A098-846-358
BACH QUINTANILLA; DIEGO A098-846-359
FRANCISCO RIVAS BACH A098-846-360
QUINTANILLA, A098-846-361
Petitioners,
v.
ERIC H. HOLDER, Jr., Attorney General,
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted August 30, 2012 **
Seattle, Washington
Before: SCHROEDER and GOULD, Circuit Judges, and FRIEDMAN, Senior
District Judge.***
Petitioners Francisco Rivas Bach Mejia, his wife Veronica, and their
children, Rebeca and Diego, seek review of two final orders issued by the Board of
Immigration Appeals: the December 14, 2010 order dismissing Petitioners’ appeal
and the July 12, 2011 order denying their motion to reopen. Petitioners argue: (1)
that the Board erred in not considering customary international law as an
independent ground for relief from removal; (2) that because the transcript omits
parts of the first hearing, their due process rights were violated; and (3) that the
Board abused its discretion in denying their motion to reopen.
First, even if the Convention on the Rights of the Child were customary
international law, Congress may legislate beyond the limits imposed by
international law. Cabrera-Alvarez v. Gonzales, 423 F.3d 1006, 1009 (9th Cir.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Paul L. Friedman, Senior District Judge for the U.S.
District Court for the District of Columbia, sitting by designation.
2005). Because Congress has enacted an extensive legislative scheme regarding
immigration, customary international law is inapplicable in immigration
proceedings, and neither an immigration judge nor the Board has jurisdiction to
hear such a claim. Galo-Garcia v. INS, 86 F.3d 916, 918 (9th Cir. 1996).
Second, to succeed on a due process claim, Petitioners must show that “the
outcome of the proceeding may have been affected by the alleged violation.”
Colmenar v. INS, 210 F.3d 967, 971 (9th Cir. 2000); see also United States v.
Medina, 236 F.3d 1028, 1031–32 (2001). Petitioners point to no material evidence
missing from the record or to any prejudice. The Immigration Judge, having
received complaints about the initial hearing, ordered a second hearing and
liberally permitted counsel for Petitioners to present testimony, regardless of
whether it had been covered at the prior hearing. Petitioners testified again at the
second hearing, and the judge asked his own clarifying questions. Petitioners had a
chance to elaborate or clarify matters of the record, and they did not complain
about the interpretation or transcription at the second hearing. Because Petitioners
did not show prejudice, the poor quality of the transcript of the first hearing does
not violate due process. See Medina, 236 F.3d at 1032.
Third, the Board may deny a motion to reopen where Petitioners do not
show a prima facie case for relief sought or introduce previously unavailable
material evidence. Najmabadi v. Holder, 597 F.3d 983, 986 (9th Cir. 2010). The
new evidence, an affidavit from Colonel Capacho, mostly includes information that
predated the hearing and was available at that time. The information that post-
dates the hearing is speculative in so far as we do not know that the person who
was killed was targeted for reasons comparable to those urged by Petitioners, and
the new evidence does not establish a particularized threat to the Petitioners. See
id. There was no abuse of discretion in denying rehearing.
DENIED.