Jacuinde Medina v. Garland

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAY 17 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
FRANCISCO JACUINDE MEDINA, No. 21-1191
Agency No.
Petitioner, A205-464-461
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted May 11, 2023**
San Francisco, California
Before: S.R. THOMAS, CHRISTEN, and BRESS, Circuit Judges.
Francisco Jacuinde Medina, a native and citizen of Mexico, petitions for
review of the denial of his applications for cancellation of removal, withholding
of removal, and protection under the Convention Against Torture (CAT). An
immigration judge (IJ) denied Petitioner’s applications, and the Board of
Immigration Appeals (BIA) dismissed his appeal. We have jurisdiction
*
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).
pursuant to 8 U.S.C. § 1252(a), and we dismiss the petition in part and deny it in
part.
Because the parties are familiar with the facts, we do not recite them here.
Where, as here, the BIA affirms the IJ, cites to Matter of Burbano, 20 I. & N.
Dec. 872 (BIA 1994), and supplements with its own reasoning, we review both
the BIA’s and the IJ’s decisions. Ali v. Holder, 637 F.3d 1025, 1028 (9th Cir.
2011). We review the agency’s factual findings for substantial evidence and its
legal conclusions de novo. Guerra v. Barr, 974 F.3d 909, 911 (9th Cir. 2020).
1. Petitioner argues that the IJ lacked jurisdiction to conduct the removal
proceedings because the Notice to Appear failed to include information about
the date and time of the removal proceedings—even though a subsequently filed
Notice of Hearing provided the missing information. Petitioner did not
substantively brief this argument before the BIA, but the BIA denied it on the
merits. See Vizcarra-Ayala v. Mukasey, 514 F.3d 870, 874 (9th Cir. 2008).
Further, our decision in United States v. Bastide-Hernandez, 39 F.4th 1187 (9th
Cir. 2022) (en banc), cert. denied, 143 S. Ct. 755 (2023), forecloses this
jurisdictional argument. There, we held that the omission of the date and time
of the hearing on the initial notice to appear does not divest the IJ of subject-
matter jurisdiction. 39 F.4th at 1193 & n.7.
2. Petitioner challenges the agency’s determination that he is ineligible
for cancellation of removal because he failed to demonstrate that removal would
result in an exceptional and extremely unusual hardship to his children, who are
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United States citizens. We lack jurisdiction over this this claim. See Martinez-
Rosas v. Gonzales, 424 F.3d 926, 930 (9th Cir. 2005); 8 U.S.C.
§ 1252(a)(2)(B)(i). Although we retain jurisdiction over colorable questions of
law and constitutional claims, 8 U.S.C. § 1252(a)(2)(D), Petitioner’s argument
that the agency failed to consider hardship evidence regarding his children is not
supported by the record, and his remaining arguments do not amount to
colorable legal or constitutional claims that would invoke our jurisdiction. See
Martinez-Rosas, 424 F.3d at 930 (“To be colorable in this context, . . . the claim
must have some possible validity.” (internal quotation marks omitted)).
3. Petitioner contends that the IJ violated his due process rights by failing
to advise him of his eligibility for pre-conclusion voluntary departure. To
prevail on a due process challenge, Petitioner must show: (1) his removal
proceedings were “fundamentally unfair”; and (2) he suffered prejudice, such
that “the outcome of the proceeding may have been affected.” Zamorano v.
Garland, 2 F.4th 1213, 1226 (9th Cir. 2021) (quotation omitted). Even
assuming that Petitioner satisfies the first prong, Petitioner cannot show that he
was prejudiced. See United States v. Rojas-Pedroza, 716 F.3d 1253, 1263 (9th
Cir. 2013) (“Where an IJ failed to advise an alien of his or her apparent
eligibility for relief, the alien must still establish prejudice under the second
prong of § 1326(d)(3).” (internal quotation marks and citation omitted)).
A petitioner can seek pre- or post-conclusion voluntary departure. See 8
U.S.C. § 1229c(a)(1), (b)(1). Post-conclusion voluntary departure requires
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some threshold eligibility showings that pre-conclusion voluntary departure
does not. See id. Petitioner, represented by counsel, chose to pursue
withholding of removal, CAT relief, and post-conclusion voluntary departure.
Petitioner has provided no indication that, had the IJ informed him of pre-
conclusion voluntary departure, he would have chosen to pursue that relief to
the exclusion of the other relief he sought. Additionally, the IJ granted
petitioner’s request for post-conclusion voluntary departure. Thus, petitioner
has not demonstrated prejudice.
4. Petitioner next challenges the agency’s determination that he was not
entitled to withholding of removal because he could reasonably relocate to
another part of Mexico to avoid the harm he feared. See 8 C.F.R.
§ 1208.16(b)(2). Substantial evidence supports the agency’s finding that
Petitioner could relocate in Mexico to avoid the harm he fears and it would be
reasonable for him to do so because Petitioner testified that he could live with
his sisters in Baja California to avoid the drug cartels.
5. The agency determined that Petitioner did not establish it is more likely
than not that he would be tortured with the consent or acquiescence of a
government official if he were removed to Mexico. See 8 C.F.R.
§§ 208.16(c)(2), 208.17(a), 208.18(a). The record contradicts Petitioner’s
argument that the agency impermissibly focused on “one factor” to deny CAT
relief. The BIA properly considered that Petitioner “was never tortured or
otherwise harmed in Mexico,” he did “not claim that he will be tortured there by
4 21-1191
a public official or other person acting in an official capacity,” and he can
“relocate to avoid the harm he fears.” See 8 C.F.R. § 1208.16(c)(3). Substantial
evidence supports that determination.
PETITION DISMISSED IN PART, DENIED IN PART.
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