Antonio Gomez-Beltran v. William Barr

• Court: Court of Appeals for the Ninth Circuit
• Decided: February 5, 2020
• Docket: 16-72518
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS FEB 5 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

ANTONIO GOMEZ-BELTRAN, No. 16-72518 17-70740 Petitioner, Agency No. A099-485-184 v.

WILLIAM P. BARR, Attorney General, MEMORANDUM* and ORDER Respondent.

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

Submitted February 3, 2020** Phoenix, Arizona

Before: GRABER, HURWITZ, and MILLER, Circuit Judges.

Antonio Gomez-Beltran, a native and citizen of Mexico, petitions for review

of two decisions of the Board of Immigration Appeals (“BIA”): one denying a

motion to reopen, and the other denying a motion to remand and dismissing an

appeal from the order of an immigration judge (“IJ”) denying cancellation of

* 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). removal. We have jurisdiction under 8 U.S.C. § 1252. We dismiss the petitions in

part and otherwise deny them.1

1. The proceedings before the IJ were not legally defective merely

because the interpreter was not formally sworn in. The interpreter was properly

sworn in during an earlier hearing. See 8 C.F.R. § 1240.5. Any purported

deficiencies in the translation did not “prejudice[] the outcome of [the] hearing.”

Hartooni v. INS, 21 F.3d 336, 340 (9th Cir. 1994). Gomez does not identify any

mistranslation relevant to his criminal history, the issue that formed the basis for the

denial of relief.

2. The IJ did not err in failing to employ additional procedural safeguards

because of Gomez’s mental state. Gomez did not show indicia of mental

incompetency and was afforded ample opportunity to consult with his attorney and

to present evidence. See Salgado v. Sessions, 889 F.3d 982, 987–89 (9th Cir. 2018).

Nor did the BIA engage in improper fact-finding in rejecting this argument. Because

Gomez raised the competency issue for the first time before the BIA, the BIA was

required to assess the existing record to determine whether further proceedings were

necessary. See Mejia v. Sessions, 868 F.3d 1118, 1121–22 (9th Cir. 2017).

3. We lack jurisdiction to review the discretionary denial of cancellation

1 We grant the government’s motion to take judicial notice of a subsequent decision of the BIA denying Gomez’s motion for reconsideration. See Dent v. Holder, 627 F.3d 365, 371 (9th Cir. 2010) (taking judicial notice of agency records).

2 of removal. Bazua-Cota v. Gonzales, 466 F.3d 747, 749 (9th Cir. 2006) (per curiam).

We therefore do not address the agency’s alternative finding that Gomez could not

establish the good moral character required for cancellation of removal. See 8 U.S.C.

§§ 1101(f)(6), 1229b(b)(1)(B).

4. The BIA did not abuse its discretion in denying Gomez’s motion to

remand for ineffective assistance of counsel. See Kwong v. Holder, 671 F.3d 872,

880 (9th Cir. 2011) (stating standard of review). Gomez did not provide his former

attorney with an “adequate opportunity to respond” to the allegations of

ineffectiveness. See Reyes v. Ashcroft, 358 F.3d 592, 598–99 (9th Cir. 2004) (citing

Matter of Lozada, 19 I. & N. Dec. 637, 639 (B.I.A. 1988)). Although “we have not

hesitated to address ineffective assistance of counsel claims even when an alien fails

to comply strictly with Lozada,” Ray v. Gonzales, 439 F.3d 582, 588 (9th Cir. 2006),

this is not a case in which “the record shows a clear and obvious case of ineffective

assistance,” Rodriguez-Lariz v. INS, 282 F.3d 1218, 1227 (9th Cir. 2002).

5. The BIA did not abuse its discretion in refusing to reopen proceedings

to allow Gomez to apply for adjustment of status, asylum, withholding of removal,

and protection under the Convention Against Torture (“CAT”). The BIA assumed

Gomez’s eligibility for adjustment of status but reasonably concluded that his

significant misrepresentations before the IJ disentitled him to this discretionary

relief. See Singh v. Holder, 643 F.3d 1178, 1181 (9th Cir. 2011). The BIA also

3 reasonably concluded that the evidence in support of the applications for asylum,

withholding of removal, and CAT protection could have been presented at his prior

proceedings before the IJ. See 8 C.F.R. § 1003.2(c)(1).

6. Because Gomez has not shown legal or constitutional error, we lack

jurisdiction to review the BIA’s decision not to invoke its sua sponte authority to

remand proceedings. See Menendez v. Whitaker, 908 F.3d 467, 471 (9th Cir. 2018).

7. Gomez’s motion to remand to terminate proceedings for lack of

jurisdiction is denied. A notice to appear need not include the date and time of the

hearing to vest jurisdiction. See Karingithi v. Whitaker, 913 F.3d 1158, 1160–62

(9th Cir. 2019).

PETITIONS FOR REVIEW DENIED IN PART, DISMISSED IN PART.