Ismael Hernandez v. Jefferson Sessions

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUN 1 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ISMAEL HERNANDEZ, No. 15-72564
Petitioner, Agency No. A088-913-748
v.
MEMORANDUM*
JEFFERSON B. SESSIONS III, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted May 24, 2017**
Before: THOMAS, Chief Judge, and SILVERMAN and RAWLINSON,
Circuit Judges.
Ismael Hernandez, a native and citizen of Mexico, petitions for review of the
Board of Immigration Appeals’ order dismissing his appeal from an immigration
judge’s (“IJ”) removal order pretermitting his application for cancellation of
removal. Our jurisdiction is governed by 8 U.S.C. § 1252. We review de novo
*
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).
questions of law. Hernandez-Mancilla v. Holder, 633 F.3d 1182, 1184 (9th Cir.
2011). We review for abuse of discretion the denial of a continuance and review
de novo due process challenges. Singh v. Holder, 638 F.3d 1264, 1269, 1274 (9th
Cir. 2011). We deny in part and dismiss in part the petition for review.
The agency correctly concluded that Hernandez was ineligible for
cancellation of removal based on his conviction for a crime of domestic violence,
where the record established that he had been convicted under California Penal
Code (“CPC”) § 273.5(a). See 8 U.S.C. § 1229b(b)(1)(C) (to qualify for
cancellation of removal, an alien cannot have been convicted of an offense under 8
U.S.C. § 1227(a)(2)); 8 U.S.C. § 1227(a)(2)(E)(i) (crimes of domestic violence are
disqualifying); Carillo v. Holder, 781 F.3d 1155, 1157 (9th Cir. 2015) (a
conviction under CPC § 273.5 is categorically a crime of domestic violence).
Accordingly, the agency did not violate due process in pretermitting the
application. See 8 C.F.R. § 1240.8(d) (alien has the burden of proof in establishing
eligibility for relief from removal); Lata v. INS, 204 F.3d 1241, 1246 (9th Cir.
2000) (to prevail on a due process challenge, an alien must show error and
prejudice).
The agency did not abuse its discretion or violate due process in declining to
grant Hernandez a continuance for failure to show good cause, where he had not
shown he had applied for post-conviction relief and success on such relief was
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speculative. See 8 C.F.R. § 1003.29; Singh, 638 F.3d at 1274 (IJ not required to
grant a continuance based on speculation); Garcia v. Lynch, 798 F.3d 876, 881 (9th
Cir. 2015) (no abuse of discretion to deny a continuance where petitioner already
had six months to pursue post-conviction relief); Lata, 204 F.3d at 1246.
The agency also did not err or violate due process in declining to consider
Hernandez’s contentions regarding his criminal proceedings. See Leal v. Holder,
771 F.3d 1140, 1148 n.5 (9th Cir. 2014) (alien cannot collaterally attack a
conviction in removal proceedings); Lata, 204 F.3d at 1246.
We lack jurisdiction to consider Hernandez’s unexhausted contentions
regarding a waiver under 8 U.S.C. §1227(a)(7)(A) and the applicability of 8 U.S.C.
§ 1227(a)(2)(E)(i). See Tijani v. Holder, 628 F.3d 1071, 1080 (9th Cir. 2010)
(“We lack jurisdiction to review legal claims not presented in an alien’s
administrative proceedings before the BIA”).
PETITION FOR REVIEW DENIED in part; DISMISSED in part.
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