Eduin Miramontes v. William Barr

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS DEC 7 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

EDUIN RENE MIRAMONTES, No. 19-70433

Petitioner, Agency No. A095-681-973

v. MEMORANDUM* WILLIAM P. BARR, Attorney General,

Respondent.

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

Submitted November 20, 2020** San Francisco, California

Before: NGUYEN, HURWITZ, and BRESS, Circuit Judges.

Eduin Rene Miramontes-Hernandez, a native and citizen of Mexico, applied

for adjustment of status under 8 U.S.C. § 1255(a) and a waiver of inadmissibility

under 8 U.S.C. § 1182(h). The Immigration Judge (“IJ”) denied both applications,

and the Board of Immigration Appeals (“BIA”) dismissed Miramontes-

* 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). Hernandez’s subsequent appeal. Miramontes-Hernandez now petitions for review.

We have jurisdiction under 8 U.S.C. § 1252, and we deny the petition.

1. Miramontes-Hernandez argues that the immigration court lacked jurisdiction

over his removal proceedings because his Notice to Appear (“NTA”) failed to

designate the court where the NTA would be filed, in violation of 8 C.F.R.

§§ 1003.14(a) and 1003.15(b)(6). This argument is foreclosed by Aguilar Fermin

v. Barr, which held that such a failure does not strip the immigration court of

jurisdiction if a subsequent hearing notice provides the missing information. 958

F.3d 887, 894–95, 895 n.4 (9th Cir. 2020). Here, although the original NTA did

not designate the immigration court, this error was cured by subsequent hearing

notices.

2. Miramontes-Hernandez next argues that the BIA violated its duty of

impartiality in Matter of Bermudez-Cota, 27 I. & N. Dec. 441 (BIA 2018), when it

held that the immigration court could remedy a NTA that lacked information

required by regulation. This argument is foreclosed by Karingithi v. Whitaker, 913

F.3d 1158 (9th Cir. 2019). In Karingithi, we found that Bermudez-Cota

“reflect[ed] the agency’s fair and considered judgment.” 913 F.3d at 1161

(quoting Lezama-Garcia v. Holder, 666 F.3d 518, 525 (9th Cir. 2011)).

3. Finally, Miramontes-Hernandez argues that the phrase “violent or dangerous

crimes” in 8 C.F.R. § 1212.7(d) is unconstitutionally vague under Sessions v.

2 Dimaya, 138 S. Ct. 1204 (2018). But Dimaya’s reasoning does not apply to

§ 1212.7(d).

Dimaya held that 18 U.S.C. § 16(b)1 was unconstitutionally vague. 138 S.

Ct. at 1216. Section 16(b) defines a “crime of violence” as “any other offense that

is a felony and that, by its nature, involves a substantial risk that physical force

against the person or property of another may be used in the course of committing

the offense.” 18 U.S.C. § 16(b) (emphasis added). The Supreme Court held that

two features of §16(b) combined to create “‘hopeless indeterminacy,’ inconsistent

with due process.” Dimaya, 138 S. Ct. at 1213 (quoting Johnson v. United States,

576 U.S. 591, 598 (2015)). First, the clause “calls for a court to identify a crime’s

‘ordinary case’ in order to measure the crime’s risk.” Id. at 1215. This “ordinary

case,” according to the Court, is “an excessively ‘speculative,’ essentially

inscrutable thing.” Id. (quoting Johnson, 576 U.S. at 597). Second, the

“substantial risk” standard was uncertain. Id. Importantly, the uncertainty of the

“substantial risk” standard alone did not make § 16(b) vague. Id. Rather, “[t]he

difficulty comes . . . from applying such a standard to . . . ‘an idealized ordinary

1 The Immigration and Nationality Act incorporates 18 U.S.C. § 16(b) into its aggravated felony deportability ground at 8 U.S.C. § 1227(a)(2)(A)(iii). See 8 U.S.C. § 1101(a)(43) (defining aggravated felonies and including crime of violence at § 1101(a)(43)(F)).

3 case of the crime.’ It is then that the standard ceases to work in a way consistent

with due process.” Id. at 1215–16 (quoting Johnson, 576 U.S. at 604).

Rather than identifying an “ordinary case,” section 1212.7(d) requires a

determination of whether a particular crime is “violent or dangerous” based on the

facts of the case. See Torres-Valdivias v. Lynch, 786 F.3d 1147, 1151–52 (9th Cir.

2015). This difference is determinative because, as explained in Dimaya, we “‘do

not doubt’ the constitutionality of applying § 16(b)’s ‘substantial risk [standard] to

real-world conduct.’” 138 S. Ct. at 1215 (alteration in original) (quoting Johnson,

576 U.S. at 604–05). Section 1212.7(d) is therefore not unconstitutionally vague.

See Guerrero v. Whitaker, 908 F.3d 541, 545 (9th Cir. 2018) (holding that

“particularly serious crime” within the meaning of 8 U.S.C. § 1231(b)(3)(B)(ii)

was not unconstitutionally vague because the inquiry “applies only to real-world

facts” so “the fatal combination at issue in . . . Dimaya is absent”).

PETITION DENIED.