Berta Cruz v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 22, 2021
• Docket: 18-72929
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 22 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

BERTA AMPARO CRUZ, No. 18-72929

Petitioner, Agency No. A070-939-781

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

Respondent.

On Petition for Review of Orders of the Board of Immigration Appeals

Submitted March 16, 2021**

Before: GRABER, R. NELSON, and HUNSAKER, Circuit Judges.

Berta Amparo Cruz, a native and citizen of El Salvador, petitions for review

of the Board of Immigration Appeals’ (“BIA”) orders dismissing her appeals from

an immigration judge’s (“IJ”) decisions denying her applications for special rule

cancellation of removal under § 203 of the Nicaraguan Adjustment and Central

* 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). American Relief Act (“NACARA”), asylum, withholding of removal, relief under

the Convention Against Torture (“CAT”), and Temporary Protected Status

(“TPS”). Our jurisdiction is governed by 8 U.S.C. § 1252. We review de novo

questions of law, including whether a state statutory crime qualifies as an

aggravated felony. Jauregui-Cardenas v. Barr, 946 F.3d 1116, 1118 (9th Cir.

2020). We review de novo due process claims 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 BIA did not error in concluding that Cruz’s conviction under California

Health and Safety Code § 11375(b) is an aggravated felony where Cruz does not

meaningfully challenge the divisibility of the statute and the judicially noticeable

documents unambiguously establish that her conviction was for possessing

Diazepam for sale. See 8 U.S.C. § 1101(a)(43)(B); see also United States v.

Martinez-Lopez, 864 F.3d 1034, 1040-41 (9th Cir. 2017) (en banc) (holding that a

similar California controlled substance statute is divisible with respect to the listed

substances); Coronado v. Holder, 759 F.3d 977, 985-86 (9th Cir. 2014) (same).

Cruz’s contention that the agency should have analyzed a version of the statute that

went into effect after her conviction fails. See Cortes-Maldonado v. Barr, 978

F.3d 643, 648 (9th Cir. 2020) (analyzing the statute of conviction as it existed at

the time of petitioner’s conviction). Cruz’s contention that the certified electronic

2 18-72929 docket must use the phrase “as charged in the complaint” is foreclosed by United

States v. Torre-Jimenez, 771 F.3d 1163, 1169 (9th Cir. 2014) (“[O]ur precedent

squarely forecloses the argument that . . . the phrase ‘as charged in the Information

(or Indictment)’ is not required where the documents are unambiguous.”). We lack

jurisdiction to consider Cruz’s unexhausted contention regarding whether valium is

a variant of Diazepam. See Barron v. Ashcroft, 358 F.3d 674, 677-78 (9th Cir.

2004) (court lacks jurisdiction to review claims not presented to the agency).

Thus, the BIA did not err in concluding Cruz was statutorily barred from obtaining

NACARA cancellation of removal where she was convicted of an aggravated

felony. See 8 C.F.R. § 1240.61(b) (NACARA relief not available to an alien

convicted of an aggravated felony).

In her opening brief, Cruz does not raise any challenge to the agency’s

determination that she failed to establish eligibility for asylum, withholding of

removal, CAT, or TPS. See Lopez-Vasquez v. Holder, 706 F.3d 1072, 1079-80

(9th Cir. 2013) (issues not specifically raised and argued in a party’s opening brief

are waived).

Cruz’s contentions that the agency violated her right to due process fail. See

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

prevail on a due process claim). To the extent Cruz contends her right to due

process was violated because the IJ did not act as a neutral arbiter, we lack

3 18-72929 jurisdiction to consider the contention. See Barron, 358 F.3d at 677-78.

On February 27, 2019, the court granted a stay of removal. The stay of

removal remains in place until issuance of the mandate.

PETITION FOR REVIEW DENIED in part; DISMISSED in part.

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