Castillo Sanchez v. Garland

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 20 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

Victor A Castillo Sanchez, No. 22-104

Petitioner, Agency No. A200-281-513

v. MEMORANDUM* Merrick B. Garland, U.S. Attorney General,

Respondent.

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

Submitted April 17, 2023 Phoenix, Arizona**

Before: OWENS and BADE, Circuit Judges, and BAKER,*** International Trade Judge.

Victor Castillo Sanchez, a native and citizen of Mexico, seeks review of a

decision of the Board of Immigration Appeals (“BIA”) dismissing his appeal of

an immigration judge’s (“IJ”) decision denying his applications for cancellation

* 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). *** The Honorable M. Miller Baker, Judge for the United States Court of International Trade, sitting by designation. of removal and adjustment of status. We deny the petition.

We generally lack jurisdiction to review the BIA’s discretionary

determinations. See Torres-Valdivias v. Lynch, 786 F.3d 1147, 1151 (9th Cir.

2015) (adjustment of status); 8 U.S.C. § 1252(a)(2)(B)(i). But we retain

jurisdiction to consider “constitutional claims or questions of law” raised in a

petition for review. 8 U.S.C. § 1252(a)(2)(D); Patel v. Garland, 142 S. Ct.

1614, 1618 (2022) (holding that, except for “legal and constitutional questions,”

the bar on judicial review of discretionary decisions “precludes judicial review

of factual findings that underlie a denial of relief”). “[T]he phrase ‘questions of

law’ in the [Limited Review] Provision includes the application of a legal

standard to undisputed or established facts.” Guerrero-Lasprilla v. Barr, 140

S. Ct. 1062, 1067 (2020) (discussing 8 U.S.C. § 1252(a)(2)(D)). We review

questions of our own jurisdiction de novo. See Rosales-Rosales v. Ashcroft, 347

F.3d 714, 716 (9th Cir. 2003).

1. The agency determined that police reports related to Castillo

Sanchez’s 2014 and 2016 arrests provided “reason to believe” that he had been

involved “in the illicit trafficking of a controlled substance,” and therefore, he

was inadmissible under 8 U.S.C. § 1182(a)(2)(C) and statutorily ineligible for

adjustment of status under 8 U.S.C. § 1255(a).1 Castillo Sanchez argues that the

1 The BIA also affirmed the denial of cancellation of removal. Castillo Sanchez does not raise, and thus has waived, any arguments challenging the denial of cancellation of removal. See Rios v. Lynch, 807 F.3d 1123, 1125 n.1

2 “reason to believe” and “probable cause” standards are “equivalent.” See

Tejeda-Mata v. INS, 626 F.2d 721, 725 (9th Cir. 1980). He therefore reasons

that because the prosecutor did not “bring formal charges relating to drug

trafficking” based on the same evidence that the agency considered, the agency

legally erred in finding “reason to believe” Castillo Sanchez was involved in

drug trafficking. We have jurisdiction to consider whether the agency applied

the correct legal standard—a question of law in the context of the denial of

discretionary relief. See Mendez-Castro v. Mukasey, 552 F.3d 975, 980 (9th

Cir. 2009).

Castillo Sanchez’s argument lacks merit because the prosecutor’s

discretionary decision not to bring charges against him does not bear on whether

there was probable cause or “reason to believe” he was involved in illicit

trafficking. See Bordenkircher v. Hayes, 434 U.S. 357, 364 (1978). The

absence of formal charges does not imply the lack of probable cause or mean

the agency applied an incorrect legal standard in determining that Castillo

Sanchez was inadmissible under 8 U.S.C. § 1182(a)(2)(C) and thus statutorily

ineligible for adjustment of status.2

2. Castillo Sanchez also contends that the IJ erred in denying his

(9th Cir. 2015) (explaining that issues not specifically raised and argued in a party’s briefs are waived). 2 A conviction is not a prerequisite for § 1182(a)(2)(C)(i) to render a noncitizen inadmissible as an illicit trafficker. See Alarcon-Serrano v. INS, 220 F.3d 1116, 1119 (9th Cir. 2000).

3 motion to suppress evidence discovered during the 2014 and 2016 arrests

because that evidence was allegedly obtained in an egregious violation of his

Fourth Amendment rights. See Martinez-Medina v. Holder, 673 F.3d 1029,

1033–34 (9th Cir. 2011) (explaining that the court may bar evidence in the

immigration context only when a Fourth Amendment violation occurred “and

that violation was egregious”). We review de novo the denial of a motion to

suppress. Id. at 1033. Castillo Sanchez, who has the burden of making a prima

facie showing of an egregious constitutional violation, see B.R. v. Garland, 26

F. 4th 827, 832 (9th Cir. 2022), does not present any arguments explaining why

any alleged Fourth Amendment violation during his arrests constitutes an

egregious violation. See Martinez-Medina, 673 F.3d at 1034 (“A constitutional

violation is not egregious unless evidence is obtained by deliberate violations of

the Fourth Amendment or by conduct a reasonable officer should have known is

in violation of the Constitution.”) (internal quotation marks and citations

omitted). Accordingly, he has not met his burden to show a prima facie

egregious Fourth Amendment violation.

PETITION DENIED.