Benjamin Ibarra Lira v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: August 20, 2021
• Docket: 15-72416
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS AUG 20 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

BENJAMIN IBARRA LIRA, AKA No. 15-72416 Benjamin I. Lira, AKA Benjamin Ibarra, AKA Benjamin Ibarra Lira, Agency No. A074-215-404

Petitioner, MEMORANDUM* v.

MERRICK B. GARLAND, Attorney General,

Respondent.

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

Submitted August 17, 2021**

Before: SILVERMAN, CHRISTEN, and LEE, Circuit Judges.

Benjamin Ibarra Lira, a native and citizen of Mexico, petitions for review of

the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an

immigration judge’s (“IJ”) decision pretermitting his application for 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. Our jurisdiction is governed by 8 U.S.C. § 1252. We review de novo

questions of law and claims of due process violations in immigration proceedings.

Jiang v. Holder, 754 F.3d 733, 738 (9th Cir. 2014). We deny in part and dismiss in

part the petition for review.

The agency did not err in determining that Ibarra Lira failed to establish that

his conviction under California Health & Safety Code (“CHSC”) § 11350(a) is not

a controlled substance violation that renders him ineligible for cancellation of

removal. See 8 U.S.C. §§ 1182(a)(2)(A)(i)(II), 1229b(b)(1)(C); Lazo v. Wilkinson,

989 F.3d 705, 714 (9th Cir. 2021) (holding that CHSC § 11350 is divisible as to

controlled substance and relying on the charging document and guilty-plea

colloquy to conclude the conviction was for possession of cocaine and thus a

violation of a law “relating to a controlled substance”). Thus, Ibarra Lira’s

cancellation of removal claim fails.

As to Ibarra Lira’s contention that the IJ erred or violated due process by not

granting a continuance, the BIA did not err in concluding the argument is without

merit. See Lata v. INS, 204 F.3d 1241, 1246 (9th Cir. 2000) (requiring error to

prevail on a due process claim). To the extent Ibarra Lira raises, in his opening

brief, a separate argument that the IJ did not allow him an opportunity to present

evidence, we lack jurisdiction to consider his contention. See Agyeman v. INS, 296

F.3d 871, 877 (9th Cir. 2002) (due process claims based on correctable procedural

2 15-72416 errors may not be entertained unless they were raised below).

The temporary stay of removal remains in place until issuance of the

mandate.

PETITION FOR REVIEW DENIED in part; DISMISSED in part.

3 15-72416