Alejandro Palacios Rivera v. Jefferson Sessions, III

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 17, 2018
• Docket: 17-71448
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAY 17 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

ALEJANDRO PALACIOS RIVERA, No. 17-71448

Petitioner, Agency No. A095-692-140

v. MEMORANDUM* JEFFERSON B. SESSIONS III, Attorney General,

Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals

Submitted May 15, 2018**

Before: SILVERMAN, BEA, and WATFORD, Circuit Judges.

Alejandro Palacios Rivera, a native and citizen of Mexico, petitions for

review of the Board of Immigration Appeals’ order dismissing his appeal from an

immigration judge’s order pretermitting his application for cancellation of

removal. We have jurisdiction under 8 U.S.C. § 1252. We review de novo legal

* 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, including constitutional claims, and review for substantial evidence

factual findings. Hernandez-Mancilla v. Holder, 633 F.3d 1182, 1184 (9th Cir.

2011). We review for abuse of discretion the denial of a continuance. Ahmed v.

Holder, 569 F.3d 1009, 1012 (9th Cir. 2009). We deny the petition for review.

The agency properly admitted the Form I-826 Notice of Rights and Request

for Disposition, where it was probative and its admission fundamentally fair. See

Sanchez v. Holder, 704 F.3d 1107, 1109 (9th Cir. 2012). Palacios Rivera’s

contentions do not overcome the presumption that the form is reliable, where,

notwithstanding additional marks on the form, he admitted he signed the form and

opted to take administrative voluntary departure. See Espinoza v. INS, 45 F.3d 308,

310 (9th Cir. 1995) (immigration forms are presumed to be reliable absent

evidence to the contrary; “The burden of establishing a basis for exclusion of

evidence from a government record falls on the opponent of the evidence, who

must come forward with enough negative factors to persuade the court not to admit

it.”).

The agency did not abuse its discretion in denying Palacios Rivera more

than one week to review and respond to the Form I-826, where he had listed his

2005 administrative voluntary departure on his application for cancellation of

removal, which he filed roughly a year and a half prior to the continuance request.

See Ahmed, 569 F.3d at 1012 (listing factors to consider when reviewing the denial

2 17-71448 of a continuance, including the reasonableness of petitioner’s conduct).

Therefore, substantial evidence supports the agency’s determination that

Palacios Rivera accepted administrative voluntary departure in 2005 and was thus

unable to show 10 years of continuous physical presence to qualify for cancellation

of removal. See 8 U.S.C. § 1229b(b)(1)(A); Ibarra-Flores v. Gonzales, 439 F.3d

614, 619 (9th Cir. 2006) (voluntary departure under threat of deportation

constitutes a break in continuous physical presence). Palacios Rivera’s contentions

that he was coerced into accepting voluntary departure are not supported, where his

statement does not indicate an immigration officer provided incorrect information

or forced him into his choice. Cf. Ibarra-Flores, 439 F.3d at 619 (record did not

contain substantial evidence that the alien took voluntary departure where there

was no documentary evidence and petitioner’s testimony indicated officers gave

him incorrect and contradictory information regarding the consequences of

accepting voluntary departure).

The agency did not err or abuse its discretion in declining to hold a hearing

or grant a continuance to explore Palacios Rivera’s mental competency pursuant to

Matter of M-A-M-, 25 I. & N. Dec. 474 (BIA 2011), where the medical records he

submitted do not contain indicia of mental incompetency.

Accordingly, the record does not support Palacios Rivera’s contentions that

he was deprived of his right to a full and fair hearing, or that the cumulative effect

3 17-71448 of the agency’s actions amounted to a violation of his due process rights. See Lata

v. INS, 204 F.3d 1241, 1246 (9th Cir. 2000) (“To prevail on a due process

challenge to deportation proceedings, [petitioner] must show error and substantial

prejudice.”).

PETITION FOR REVIEW DENIED.

4 17-71448