Dania Simeon-Hernandez v. Merrick Garland

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 14 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

DANIA IZAMAR SIMEON-HERNANDEZ; No. 16-72398 et al., Agency Nos. A206-884-496 Petitioners, A206-884-497

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

Respondent.

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

Submitted April 11, 2022**

Before: McKEOWN, CHRISTEN, and BRESS, Circuit Judges.

Dania Izamar Simeon-Hernandez and her minor child, natives and citizens

of Honduras, petition for review of the Board of Immigration Appeals’ order

dismissing their appeal from an immigration judge’s (“IJ”) decision ordering their

* 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). Accordingly, petitioners’ request for oral argument is denied. removal. We have jurisdiction under 8 U.S.C. § 1252. We review de novo

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

Simeonov v. Ashcroft, 371 F.3d 532, 535 (9th Cir. 2004). We deny the petition for

review.

Petitioners’ contentions that the agency erred and violated their right to due

process by not advising petitioners of the availability of asylum, withholding of

removal, and CAT relief fail where petitioners did not demonstrate apparent

eligibility for those forms of relief. See Lata v. INS, 204 F.3d 1241, 1246 (9th Cir.

2000) (error required to prevail on a due process claim); see also Valencia v.

Mukasey, 548 F.3d 1261, 1262-63 (9th Cir. 2008) (there is no requirement that a

noncitizen be advised of the availability of relief where there is no apparent

eligibility for it). We reject as unsupported by the record petitioners’ contentions

that the agency erred in analyzing their apparent eligibility for relief.

We do not consider the materials referenced in the opening brief that are

outside the administrative record. See Fisher v. INS, 79 F.3d 955, 963-64 (9th Cir.

1996) (en banc).

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

mandate.

PETITION FOR REVIEW DENIED.

2 16-72398