Jong Kim v. Merrick Garland

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUN 27 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JONG MIN KIM, No. 21-70432
Petitioner, Agency No. A200-311-565
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted June 13, 2022
San Francisco, California
Before: RAWLINSON, CHRISTEN and KOH, Circuit Judges.
Jong Min Kim (“Kim”), a native and citizen of South Korea, seeks review of
a decision of the Board of Immigration Appeals (“BIA”) affirming the denial by an
immigration judge (“IJ”) of Kim’s motion to reopen. We have jurisdiction under 8
U.S.C. § 1252. We “review the BIA’s denial of a motion to reopen for an abuse of
discretion,” Hernandez-Ortiz v. Garland, 32 F.4th 794, 800 (9th Cir. 2022), and
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
“the BIA’s legal determinations de novo,” Velasquez-Rios v. Wilkinson, 988 F.3d
1081, 1085 (9th Cir. 2021). For the reasons below, we deny the petition for
review.1
1. The “BIA is entitled to deny a motion to reopen where the applicant
fails to demonstrate prima facie eligibility for the underlying relief.” Lopez-
Vasquez v. Holder, 706 F.3d 1072, 1080 (9th Cir. 2013). The relief Kim seeks is
cancellation of removal. For cancellation of removal, Kim must prove “all aspects
of [his] eligibility,” including showing that “he has not been convicted of certain
criminal offenses.” Pereida v. Wilkinson, 141 S. Ct. 754, 758-59 (2021) (emphasis
added). Kim was previously convicted of a drug felony under California Health
and Safety Code § 11359, rendering him ineligible for cancellation of removal. See
Roman-Suaste v. Holder, 766 F.3d 1035, 1040 (9th Cir. 2014).
However, a state conviction vacated because of a procedural or substantive
defect in the underlying criminal proceeding cannot be used in removal
proceedings. See Prado v. Barr, 949 F.3d 438, 441 (9th Cir. 2020). A state
conviction vacated for equitable, rehabilitation, or immigration hardship reasons
remains valid under federal immigration law. Id.A California state court vacated Kim’s drug felony conviction prior to Kim
filing the motion to reopen. Kim bears the burden of showing that Kim’s
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Kim’s motion for stay of removal is denied as moot.
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conviction was vacated because of a procedural or substantive defect. See Pereida,
141 S. Ct. at 761 (rejecting the argument that the government bears the burden of
proof to show whether an individual applying for cancellation of removal was
convicted of disqualifying criminal offenses).
Kim fails to carry his burden because he fails to identify in the record any
procedural or substantive defect in his underlying criminal proceeding. See Prado,
949 F.3d at 441-42. As such, Kim fails to show prima facie eligibility for
cancellation of removal, and the BIA did not abuse its discretion in denying Kim’s
motion to reopen.
Kim relies on Nath v. Gonzales, 467 F.3d 1185 (9th Cir. 2006), but that case
is inapposite. In Nath, we required the government to show why the state court
vacated a conviction because the government relied on that conviction as the basis
of removal. Id. at 1188-89; accord 8 U.S.C. § 1229a(c)(3)(A). Here, the
government did not rely on Kim’s vacated conviction as the basis for removal.
2. Kim’s due process claim is unexhausted and unpersuasive. To the
extent Kim alleges a due process violation by the IJ, Kim failed to exhaust that
claim before the BIA. See Sola v. Holder, 720 F.3d 1134, 1136 (9th Cir. 2013)
(due process claims correctable by the BIA must be presented to the BIA). Nor has
Kim shown any error by the BIA or resulting prejudice. Lata v. I.N.S., 204 F.3d
1241, 1246 (9th Cir. 2000) (petitioner must show error and prejudice to succeed on
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a due process claim).
3. Kim argues the BIA erred by relying on Matter of Thomas &
Thompson, 27 I. & N. Dec. 674 (A.G. 2019), a published opinion by the United
States Attorney General. This argument fails for two reasons. First, in the instant
case the BIA did not rely on the portion of Matter of Thomas overruling BIA
precedent. Second, Kim’s contention that Matter of Thomas violates the United
States Constitution because the United States Attorney General overruled prior
BIA precedent, is incorrect. “[T]he Attorney General may overrule the BIA by
issuing a published opinion.” Miguel-Miguel v. Gonzales, 500 F.3d 941, 947 (9th
Cir. 2007).
PETITION DENIED.
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