Jose Marquez Zamora v. Merrick Garland

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS AUG 3 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOSE JORGE MARQUEZ ZAMORA, No. 21-70773
Petitioner, Agency No. A200-565-798
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted August 1, 2022**
Pasadena, California
Before: SILER,*** CALLAHAN, and H. THOMAS, Circuit Judges.
Jose Jorge Marquez Zamora, a native and citizen of Mexico, petitions for
review of a Board of Immigration Appeals (“BIA”) dismissal of his appeal from an
*
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).
***
The Honorable Eugene E. Siler, United States Circuit Judge for the
U.S. Court of Appeals for the Sixth Circuit, sitting by designation.
immigration judge’s (“IJ”) decision denying his application for cancellation of
removal for non-permanent residents under 8 U.S.C. § 1229b(b) and ordering him
removed. We deny the petition for review in part and dismiss it in part for lack of
jurisdiction.
1. Pursuant to 8 U.S.C. §1229b(b)(1)(A), the Attorney General may
cancel removal of a noncitizen if he can establish that he: “(1) has been physically
present in the United States for a continuous period of not less than 10 years
immediately preceding the date of application; (2) has been a person of good moral
character during such period; (3) has not been convicted of certain criminal
offenses, . . . ; and (4) that removal would result in exceptional and extremely
unusual hardship to the [noncitizen’s] spouse, parent, or child, who is a citizen of
the United States or a lawful permanent resident.” Camacho-Cruz v. Holder, 621
F.3d 941, 942 (9th Cir. 2010).
Although we “lack jurisdiction to review any discretionary judgment
regarding [the] components of the granting of relief for cancellation of removal,”
we retain jurisdiction “to review whether an alien has met the ‘ten years of
continuous physical presence requirement because this is an objective, factual
inquiry.’” Gutierrez v. Mukasey, 521 F.3d 1114, 1116 (9th Cir. 2008) (quoting
Falcon Carriche v. Ashcroft, 350 F.3d 845, 853 (9th Cir. 2003)). We review for
substantial evidence the agency’s factual determination that a petitioner has not
2
maintained ten years’ continuous physical presence, meaning the “petitioner can
obtain reversal only if the evidence compels a contrary conclusion.” Zarate v.
Holder, 671 F.3d 1132, 1134 (9th Cir. 2012).
The agency’s determination that Marquez Zamora failed to establish
physical presence “for a continuous period of not less than 10 years immediately
preceding the date of [his] application” is supported by substantial evidence.
Gutierrez, 521 F.3d at 1116–17 (quoting 8 U.S.C. § 1229b(b)(1)(A)). Petitioner’s
voluntary return to Mexico on November 17, 2010, broke his continuous physical
presence, and Marquez Zamora did not accrue a new ten-year period before filing
his application on September 17, 2017.
Marquez Zamora contends that his decision to accept voluntary return did
not break his continuous physical presence because it was not knowing or
voluntary. But substantial evidence supports the agency’s rejection of that
contention. This evidence includes a signed I-286 form, read to the Petitioner in
Spanish by an immigration officer, memorializing Petitioner’s election of
voluntary departure, and Petitioner’s testimony that he accepted voluntary
departure because he thought it would make it easier to adjust status later and
allow him to avoid further detention in the interim. See Valadez-Munoz v. Holder,
3
623 F.3d 1304, 1312 (9th Cir. 2010); see also Gutierrez, 521 F.3d at 1117.1
2. Petitioner claims that the agency “violated Petitioner’s rights to due
process by failing to act as a neutral fact finder and by failing to consider
uncontested evidence created by the U.S. Government and Petitioner’s credible
testimony.” Petitioner does not support this claim with any specific argument in his
opening brief. Accordingly, his due process claim concerning the agency’s denial
of Petitioner’s cancellation application is not colorable, see Martinez-Serrano v.
I.N.S., 94 F.3d 1256, 1259–60 (9th Cir. 1996), and we therefore lack jurisdiction
over it. See Martinez-Rosas v. Gonzales, 424 F.3d 926, 930 (9th Cir. 2005).
3. Petitioner contends that the agency applied the wrong legal standard
in denying him pre-conclusion voluntary departure. There is no evidence in the
record that Petitioner requested pre-conclusion voluntary departure before the IJ,
nor did he seek remand from the BIA to the IJ to remedy any error concerning
1
Petitioner makes an alternative—albeit irrelevant—argument that his Notice to
Appear (“NTA”), filed on May 1, 2014, was deficient under Pereira v. Sessions,
138 S. Ct. 2105 (2018), and Niz-Chavez v. Garland, 141 S. Ct. 1474 (2021), and
that it thus did not “stop time” on his re-accrual of continuous presence after he
reentered on December 4, 2010, following his November 2010 voluntary
departure. While the government concedes the deficiency of the NTA, it is
undisputed that Marquez Zamora did not have ten years’ continuous physical
presence between reentering the United States in December 2010 after his
voluntary return and filing his cancellation application on September 14, 2017, as
required by 8 U.S.C. § 1229b(b)(1)(A). Accordingly, the question whether the
NTA was sufficient to trigger the stop-time rule under Pereira and Niz-Chavez is
not relevant to this petition.
4
denial of pre-conclusion voluntary departure. This claim is therefore unexhausted,
and we dismiss it for lack of jurisdiction. See, e.g., Honcharov v. Barr, 924 F.3d
1293, 1296 n.2 (9th Cir. 2019) (per curiam).
PETITION DENIED in part; DISMISSED in part.
5