Cervantes Mejia v. Bondi

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 25, 2025
• Docket: 23-1735
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 25 2025 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

JOSE DE JESUS CERVANTES MEJIA, No. 23-1735 Agency No. Petitioner, A203-714-651 v. MEMORANDUM*

PAMELA BONDI, Attorney General,

Respondent.

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

Argued and Submitted April 3, 2025 Phoenix, Arizona

Before: W. FLETCHER, WALLACH**, and R. NELSON, Circuit Judges.

Jose de Jesus Cervantes Mejia petitions for review of a decision by the

Board of Immigration Appeals dismissing his appeal of an Immigration Judge’s

order denying his applications for cancellation of removal and post-conclusion

voluntary departure. See 8 U.S.C. §§ 1229b(b)(1), 1229c(b)(1). We have

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Evan J. Wallach, United States Circuit Judge for the Federal Circuit, sitting by designation. jurisdiction under 8 U.S.C. § 1252(a)(1), and we deny the petition for review.

1. The agency did not err by denying Cervantes Mejia’s application for

cancellation of removal. By the time that the BIA adjudicated Cervantes Mejia’s

appeal, his daughter Yesenia was no longer a qualifying relative under 8 U.S.C.

§§ 1101(b)(1) and 1229b(b)(1)(D). In Mendez-Garcia v. Lynch, we endorsed the

BIA’s theory, articulated in Matter of Isidro-Zamorano, that an application for

cancellation of removal is a continuing one. 840 F.3d 655, 664–65 (9th Cir. 2016)

(discussing Matter of Isidro-Zamorano, 25 I & N. Dec. 829 (BIA 2012)). Because

the application is a continuing one, “the issue of qualifying relatives should

properly be considered as of the time an application for cancellation of removal is

finally decided,” meaning “up to the time [the BIA] decide[s] an . . . appeal.”

Matter of Bautista Gomez, 23 I. & N. Dec. 893, 894 (BIA 2006). Accordingly, the

BIA did not err in declining to consider hardship to Yesenia, who was no longer a

child by the time the application for cancellation of removal was finally decided.

Nor did the agency err as it considered the relevant hardship factors

individually and in the aggregate to Cervantes Mejia’s qualifying family members.

See Figueroa v. Mukasey, 543 F.3d 487, 497 (9th Cir. 2008). Under either an

abuse-of-discretion standard or a substantial-evidence standard, the BIA did not err

in concluding that the hardship to Cervantes Mejia’s family members would not be

“‘substantially’ beyond the ordinary hardship that would be expected when a close

2 23-1735 family member leaves this country.” In re Monreal-Aguinaga, 23 I. & N. Dec. 56,

60, 62 (BIA 2001); cf. Magana-Magana v. Garland, 129 F.4th 557, 572 (9th Cir.

2025) (applying abuse of discretion framework in reviewing mixed question of law

and fact); Martinez v. Clark, 124 F.4th 775, 784 (9th Cir. 2024) (same). And,

putting to one side the background presumption that the agency thoroughly reviews

and appropriately considers all record evidence, see Szonyi v. Barr, 942 F.3d 874,

897 (9th Cir. 2019), the IJ “expressly cited and applied Monreal in rendering its

decision, which is all” we require for the cumulative analysis, Mendez-Castro v.

Mukasey, 552 F.3d 975, 980 (9th Cir. 2009).

2. Likewise, the agency did not err by declining to allow Cervantes Mejia to

voluntarily depart from the country upon the conclusion of the proceedings. The

agency correctly applied the appropriate legal standard: Cervantes Mejia failed to

satisfactorily explain the disposition of a prior arrest, and the BIA correctly

concluded that this failure was fatal because it was Cervantes Mejia’s burden to

establish eligibility for the relief he sought. See Matter of Arguelles-Campos, 22

I. & N. Dec. 811, 816–17 (BIA 1999). And to the extent that Cervantes Mejia

argues that the agency was wrong not to grant voluntary departure as a matter of

discretion, this court lacks jurisdiction to do disturb such a decision. See Wilkinson

v. Garland, 601 U.S. 209, 225 n.4 (2024).

3. Finally, the agency did not deprive Cervantes Mejia of due process

3 23-1735 during the proceedings. Nothing about his proceedings—including the IJ’s

limiting of his testimony and the testimony of his family—made the proceedings

“so fundamentally unfair” that Cervantes Mejia “was prevented from reasonably

presenting his case.” Gutierrez v. Holder, 662 F.3d 1083, 1091 (9th Cir. 2011)

(quotation omitted).

PETITION DENIED.

4 23-1735