Arnulfo Sanchez-Perez v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: August 31, 2022
• Docket: 17-70046
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS AUG 31 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

ARNULFO SANCHEZ-PEREZ, No. 17-70046

Petitioner, Agency No. A076-639-634

v. MEMORANDUM* MERRICK B. GARLAND, Attorney General,

Respondent.

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

Submitted August 12, 2022** Seattle, Washington

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

Petitioner Arnulfo Sanchez-Perez petitions for review of a Board of

Immigration Appeals (BIA) decision denying relief on his applications for asylum,

withholding of removal, and protection under the Convention Against Torture

(CAT) and denying his request for a continuance so he could seek an adjustment 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). status. We dismiss the petition in part and deny in part.

1. Jurisdictional Bar. Judicial review is limited “for cases involving

noncitizens who have committed any crime specified in 8 U.S.C. § 1252(a)(2)(C).”

Nasrallah v. Barr, 140 S. Ct. 1683, 1687 (2020). “Those noncitizens may obtain

judicial review of constitutional and legal challenges to the final order of removal,

but not of factual challenges to the final order of removal.” Id. at 1687–88. And

jurisdiction exists for constitutional and legal challenges only if they are “colorable,

i.e., they have “some possible validity.” Mendez-Castro v. Mukasey, 552 F.3d 975,

978 (9th Cir. 2009) (quotation marks and citation omitted).

Section 1252’s jurisdictional bar applies here because Sanchez-Perez

committed at least one crime specified in § 1252—his first-degree theft conviction

constitutes an aggravated felony. See 8 U.S.C. § 1227(a)(2)(A)(iii). Sanchez-Perez

admitted the factual allegations underlying this conviction, and he does not challenge

his conviction on appeal, see Velasquez-Gaspar v. Barr, 976 F.3d 1062, 1065 (9th

Cir. 2020). Even if he had, we would lack jurisdiction to review any factual challenge

to Sanchez-Perez’s final order of removal. See Nasrallah, 140 S. Ct. at 1694; see

also Florez-Miramontes v. INS, 212 F. 3d 1133, 1135 (9th Cir. 2000) (court lacked

jurisdiction under § 1252 where petitioner was convicted of a crime that made him

2 removable as charged and he had been ordered removed).1

2. CAT Relief. Section 1252 does not “preclude judicial review of factual

challenges to CAT orders.” Nasrallah, 140 S. Ct. at 1690. However, we nonetheless

lack jurisdiction to consider Sanchez-Perez’s CAT claim because he failed to

exhaust it to the BIA. See 8 U.S.C. § 1252(d)(1).

3. Asylum and Withholding. Sanchez-Perez argues that he has

established eligibility for asylum and withholding of removal by showing that he has

a well-founded fear of future persecution and that he is likely to be persecuted

because of his membership in a particular social group (men with tattoos returning

to Mexico and member of family that owns valuable land in Mexico). Sanchez-Perez

failed to exhaust these claims with the BIA. See 8 U.S.C. § 1252(d)(1). Although he

argued before the BIA that he was a member of a particular social group (males

returning to Mexico with visible tattoos) he, as the BIA noted, failed to challenge

“in any meaningful respect, the Immigration Judge’s findings that he has not

established a nexus to a protected ground, that he does not have a subjectively

genuine or objectively reasonable fear of persecution, or that he could reasonably

relocate to another part of Mexico where he could avoid the harm he fears.” These

1 A challenge to Sanchez-Perez’s convictions would also fail for lack of exhaustion to the BIA. See 8 U.S.C. § 1252(d)(1); Sola v. Holder, 720 F.3d 1134, 1135 (9th Cir. 2013) (per curiam).

3 unexhausted issues are dispositive and require dismissal of Sanchez-Perez’s legal

challenges to denial of his asylum and withholding claims for lack of jurisdiction.

4. Continuance. Sanchez-Perez argues that the BIA abused its discretion

in denying his request for a continuance. We have jurisdiction to review this

challenge. See Perez-Palafox v. Holder, 744 F.3d 1138, 1144–45 (9th Cir. 2014).

“[T]he BIA abuses its discretion when it fails to state its reasons and show proper

consideration of all factors when weighing equities and denying relief.” Ahmed v.

Holder, 569 F.3d 1009, 1014 (9th Cir. 2009) (internal quotations and citations

omitted). Here, the BIA considered the positive and negative factors in Sanchez-

Perez’s case and determined that, because he likely would not be eligible for

adjustment of status based on his drug abuse and criminal history, there was not good

cause for a continuance. See Matter of Hashmi, 24 I. & N. Dec. 785, 790 (BIA 2009)

(outlining the factors that must be considered for a motion to continue based on a

pending I-130 petition). Accordingly, the BIA did not abuse its discretion.

We do not consider Sanchez-Perez’s due process claim related to the denial

of his continuance request because it is not “colorable.” See Mendez-Castro, 552

F.3d at 978. Sanchez-Perez has not shown that the IJ prevented him from presenting

his case, denied him a full, fair, and impartial hearing, “or otherwise denied a basic

due process right.” Martinez-Rosas v. Gonzales, 424 F.3d 926, 930 (9th Cir. 2005).

Instead, he makes only a conclusory assertion that the IJ violated his due process

4 rights by “prejudging the merit of his application for adjustment of status without

even considering the application, waiver, or supporting evidence” that the record

evidence contradicts. This bare assertion is insufficient.

PETITION FOR REVIEW DISMISSED IN PART, DENIED IN PART.