Estuardo Fajardo v. William Barr

• Court: Court of Appeals for the Ninth Circuit
• Decided: June 10, 2020
• Docket: 18-71344
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION JUN 10 2020 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

ESTUARDO FAJARDO, No. 18-71344

Petitioner, Agency No. A092-798-445

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

Respondent.

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

Submitted May 15, 2020** Portland, Oregon

Before: BYBEE and VANDYKE, Circuit Judges, and CHHABRIA,*** District Judge.

Petitioner Estuardo Fajardo petitions for review of the Board of Immigration

Appeals’ (BIA) decision affirming an immigration judge’s (IJ) order of removal.

* 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 Vince Chhabria, United States District Judge for the Northern District of California, sitting by designation. Because the parties are familiar with the facts, we do not recite them here except as

necessary. We have jurisdiction over properly exhausted claims under 8 U.S.C.

§ 1252. We deny in part and dismiss in part the petition for review.

1. Fajardo argues that his 2006 conviction under California Health and Safety

Code (CHSC) § 11359 does not qualify as an aggravated felony under the

Immigration and Nationality Act (INA) in light of Moncrieffe v. Holder, 569 U.S.

184 (2013). To determine whether a state conviction for a drug-related offense

constitutes an “aggravated felony” under the INA, we employ the categorical

approach described in Taylor v. United States, 495 U.S. 575 (1990). Moncrieffe,

569 U.S. at 190. We need not conduct this analysis here, however, because

Fajardo’s argument is squarely foreclosed by our decision in Roman-Suaste v.

Holder, 766 F.3d 1035 (9th Cir. 2014).1 There, we held that, even after

Moncrieffe, “a conviction for possession of marijuana for sale under CHSC

1 Even though Roman-Suaste is directly on point, Fajardo’s opening brief neither discusses nor even cites it. Both the IJ and the BIA relied extensively on Roman-Suaste when concluding that Fajardo’s conviction constituted an aggravated felony. And in briefing before the IJ and the BIA, Fajardo’s counsel cited and discussed Roman-Suaste, arguing that it did not foreclose Fajardo’s claim. Those briefs were signed by the same attorney who represents Fajardo in this appeal. Thus, the failure to mention Roman-Suaste in the opening brief is inexplicable. We take this opportunity to remind counsel that the duty of candor requires counsel to bring relevant adverse authority to our attention and argue why that authority does not control. 2 § 11359 is categorically an aggravated felony.” Id. at 1037. Because Fajardo was

convicted under CHSC § 11359, he has committed an aggravated felony, rendering

him removable. The BIA did not err in reaching this conclusion.

2. Fajardo contends that the IJ’s decision to transfer venue from Lancaster to

San Antonio violated his Fifth Amendment due process rights. Our jurisdiction is

limited to claims that an “alien has exhausted” before the BIA. 8 U.S.C.

§ 1252(d)(1). Despite having two chances to do so, Fajardo never presented this

argument to the BIA. And contrary to Fajardo’s assertion, the first opportunity to

make this argument was not his opening brief filed with this Court in his previous

petition for review in 2012. Rather, Fajardo could have raised this claim during his

initial appeal to the BIA in 2009. Because he did not do so, we lack jurisdiction to

consider it.

PETITION DENIED IN PART, DISMISSED IN PART.