Celedonio Silva-Olayo v. William Barr

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 26, 2019
• Docket: 15-70960
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 26 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

CELEDONIO SILVA-OLAYO, Nos. 15-70960 15-73076 Petitioner, Agency No. A200-878-130 v.

WILLIAM P. BARR, Attorney General, ORDER AND MEMORANDUM*

Respondent.

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

Argued and Submitted March 8, 2019 Portland, Oregon

Before: GRABER and BERZON, Circuit Judges, and ROBRENO,** District Judge.

Celedonio Silva-Olayo, a native and citizen of Mexico, petitions for review

of two orders from the Board of Immigration Appeals (BIA). In the first order, the

BIA dismissed an appeal from an immigration judge (IJ) denying Silva’s

application for cancellation of removal. In the second, the BIA denied a motion to

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Eduardo C. Robreno, United States District Judge for the Eastern District of Pennsylvania, sitting by designation. reopen based on Silva’s alleged incompetency during the proceedings. We dismiss

in part and deny in part.

1. We dismiss Silva’s first petition for review, challenging the IJ’s denial

of Silva’s cancellation application, for lack of jurisdiction.1 We lack jurisdiction to

review an IJ’s denial of cancellation of removal except where a colorable

constitutional or legal question relating to the cancellation determination has been

raised. 8 U.S.C. § 1252(a)(2)(B)(i), (a)(2)(D); see also Martinez-Rosas v.

Gonzales, 424 F.3d 926, 930 (9th Cir. 2005). We also lack jurisdiction to review “a

legal claim not presented in administrative proceedings below.” Barron v.

Ashcroft, 358 F.3d 674, 678 (9th Cir. 2004). Here, any such colorable

constitutional or legal claims pertaining to Silva’s cancellation determination were

not presented to the BIA and so have not been exhausted. See Abebe v. Mukasey,

554 F.3d 1203, 1208 (9th Cir. 2009) (en banc). We therefore lack jurisdiction over

those claims.

2. The BIA did not abuse its discretion by denying Silva’s motion to

reopen as to due process claims related to his alleged incompetency. Silva has not

1 As part of this petition for review, Silva also requested that we take judicial notice of certain documents purporting to establish his eligibility for voluntary departure. As Silva raised no arguments relating to voluntary departure in his briefs, we DENY the motion.

2 shown that the failure of his attorney or the IJ to recognize his alleged

incompetency prejudiced him.

“As a general rule, an individual may obtain relief for a due process

violation only if he shows that the violation caused him prejudice, meaning the

violation potentially affected the outcome of the immigration proceeding.” Gomez-

Velazco v. Sessions, 879 F.3d 989, 993 (9th Cir. 2018). “To show prejudice, [a

petitioner] must present plausible scenarios in which the outcome of the

proceedings would have been different if a more elaborate process were provided.”

Tamayo-Tamayo v. Holder, 725 F.3d 950, 954 (9th Cir. 2013) (alteration in

original) (quoting Morales-Izquierdo v. Gonzales, 486 F.3d 484, 495 (9th Cir.

2007) (en banc)).

Here, Silva has not explained how the removal proceedings would have been

different had he been found to be incompetent under Matter of M-A-M-, 25 I. & N.

Dec. 474 (B.I.A. 2011). Silva was represented by an attorney and received

supporting testimony from the mother of his children. The IJ left the record open

for more than one year to allow Silva to provide additional evidence, which he did

not do. Silva was therefore “afforded the very safeguards contemplated by

M-A-M-[:] the opportunity to consult with his attorney and to examine witnesses

and present evidence.” Salgado v. Sessions, 889 F.3d 982, 988 (9th Cir. 2018).

Because Silva has not shown that an incompetency determination would have led

3 to “a more elaborate process,” he has likewise failed to establish that “the outcome

of the proceedings would have been different” if he were found incompetent.

Tamayo-Tamayo, 725 F.3d at 954 (quoting Morales-Izquierdo, 486 F.3d at 495).

3. The BIA also did not abuse its discretion in denying Silva’s motion to

reopen based on new claims for asylum, withholding of removal, and relief under

the Convention Against Torture (CAT). To warrant reopening based on a new

claim for relief, a petitioner must “establish[] a prima facie case of eligibility for

the underlying relief sought.” Ramirez-Munoz v. Lynch, 816 F.3d 1226, 1228 (9th

Cir. 2016). Silva has not shown prima facie eligibility for asylum and withholding

of removal, as “vague and conclusory allegations of fear for his life if he returns to

Mexico are clearly insufficient to support a finding of a well-founded fear of future

persecution.” Mendez-Gutierrez v. Gonzales, 444 F.3d 1168, 1172 (9th Cir. 2006).

Nor has Silva established prima facie eligibility for CAT relief, as he did not

provide evidence showing that “it is more likely than not he would be tortured with

the consent or acquiescence of a public official” upon returning to Mexico. Cano-

Merida v. INS, 311 F.3d 960, 966 (9th Cir. 2002).

DISMISSED in part, DENIED in part.