Alfonso Espinoza Lara v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 19, 2021
• Docket: 19-71594
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 19 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

ALFONSO ESPINOZA LARA, AKA No. 19-71594 Roberto Vargas, Agency No. A205-022-807 Petitioner,

v. MEMORANDUM*

MERRICK B. GARLAND, Attorney General,

Respondent.

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

Submitted March 16, 2021** San Francisco, California

Before: BERZON, MURGUIA, and CHRISTEN, Circuit Judges.

Alfonso Espinoza Lara, a native and citizen of Mexico, seeks review of a

final order of the Board of Immigration Appeals (“BIA”) dismissing Espinoza’s

appeal of the Immigration Judge’s (“IJ”) denial of cancellation of removal.

* 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). Espinoza argues that his due process rights were violated. We review due process

challenges in immigration proceedings de novo. Jiang v. Holder, 754 F.3d 733,

738 (9th Cir. 2014). We deny the petition for review.

1. The timing of the IJ’s decision to deny cancellation of removal did not

violate Espinoza’s procedural due process rights. First, the timing did not affect

the substance of Espinoza’s cancellation of removal hearing. Espinoza received a

fair hearing and was able to “reasonably present[] his case” in full before the IJ and

BIA. Ibarra-Flores v. Gonzales, 439 F.3d 614, 620–21 (9th Cir. 2006) (internal

quotations and citations omitted). Further, because the internal memorandum is an

“internal directive[] [that does] not hav[e] the force and effect of law,” Romeiro de

Silva v. Smith, 773 F.2d 1021, 1025 (9th Cir. 1985), the Operative Policies and

procedures memorandum (“OPPM”) on which Espinoza relies does not create due

process rights for Espinoza. See James v. U.S. Parole Comm’n, 159 F.3d 1200,

1205 (9th Cir. 1998); Cancellation of Removal or Suspension of Deportation That

Are Subject to the Cap, Operating Policies and Proc. Mem. 17-04, 2017 WL

6766314 (Dec. 20, 2017).1

Second, the timing of the IJ’s decision denying cancellation of removal did

1 We do not consider whether the 1998 Rule, rather than the 2017 Rule, applies to Espinoza and creates any enforceable rights, see 82 Fed. Reg. 57,336 (codified at 8 C.F.R. § 1240.21), because he did not raise that issue before the agency. Instead, he relied only on the OPPM. See Bare v. Barr, 975 F.3d 952, 960 (9th Cir. 2020).

2 not prejudice Espinoza. The IJ’s denial of cancellation of removal was decided on

the merits. Nothing in the record indicates that the IJ’s decision would have been

different had he issued his decision later. See Ibarra-Flores, 439 F.3d at 621.

2. Espinoza waived his procedural due process challenge to the Department

of Homeland Security’s failure to submit a brief on appeal and the BIA’s scope of

review because he failed to “specifically and distinctly argue” the issue in his

opening brief and in his reply brief. Koerner v. Grigas, 328 F.3d 1039, 1048 (9th

Cir. 2003) (internal quotations and citations omitted).

PETITION DENIED.