Rodolfo Nepomuceno v. Eric H. Holder Jr.

FILED
NOT FOR PUBLICATION JAN 03 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
RODOLFO NAVARRO No. 08-72413
NEPOMUCENO; JACQUELINE
GALLAS NEPOMUCENO, Agency Nos. A093-167-922
A099-189-285
Petitioners,
v. MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted December 19, 2012 **
Before: GOODWIN, WALLACE, and FISHER, Circuit Judges.
Rodolfo Navarro Nepomuceno and his wife Jacqueline Gallas Nepomuceno,
natives and citizens of the Philippines, petition for review of a decision of the
Board of Immigration Appeals affirming the immigration judge’s denial of their
*
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).
motion to terminate removal proceedings and their applications for cancellation of
removal. Because we found that a genuine issue of material fact about Rodolfo
Navarro Nepomuceno’s nationality was presented, the matter was transferred to the
district court for a new hearing and decision on Rodolfo Navarro Nepomuceno’s
claim of United States nationality. See 8 U.S.C. § 1252(b)(5)(B). Petitioners seek
review of the district court’s finding that Rodolfo Navarro Nepomuceno failed to
prove his claim of United States citizenship. We have jurisdiction under 8 U.S.C.
§ 1252, and we deny the petition for review.
The district court did not clearly err in finding that Rodolfo Navarro
Nepomuceno failed to prove that he was United States citizen where he presented
inadequate documentary evidence in support of his claim. See Sanchez-Martinez v.
INS, 714 F.2d 72, 74 (9th Cir. 1983) (district court’s findings of fact regarding
citizenship are reviewed for clear error).
The district court did not abuse its discretion in denying petitioners’ motion
to strike defendant’s response to petitioners’ opposition to defendant’s renewed
motion for summary judgment because it was timely under the local court rules.
See Hambleton Bros. Lumber Co. v. Balkin Enters., Inc., 397 F.3d 1217, 1224 n.4
(9th Cir. 2005) (“A district court’s grant of a motion to strike is reviewed for an
abuse of discretion.”).
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To the extent petitioners allege that their hearing before the immigration
judge violated due process, this claim fails because petitioners are unable to
demonstrate prejudice as the district court reviewed Rodolfo Navarro
Nepomuceno’s nationality claim de novo. See Lata v. INS, 204 F.3d 1241, 1246
(9th Cir. 2000) (requiring substantial prejudice to prevail on a due process claim).
We reject petitioners’ contentions regarding the district court’s discovery
decisions.
Petitioners have failed to raise in their opening brief, and, therefore have
waived, any challenge to the agency’s denial of their applications for cancellation
of removal. See Rizk v. Holder, 629 F.3d 1083, 1091 n.3 (9th Cir. 2011) (issues
not raised in opening brief may be deemed waived).
Finally, petitioners’ motion to “permit the petitioner to disclose confidential
information to the third party” is denied because it fails to specify the grounds for
relief or identify the relief sought. See Fed. R. App. P. 27(a)(2)(A).
PETITION FOR REVIEW DENIED.
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