Francisco Brito v. William Barr

• Court: Court of Appeals for the Ninth Circuit
• Decided: October 21, 2020
• Docket: 17-72644
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS OCT 21 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

FRANCISCO PAULA BRITO, AKA No. 17-72644 Francisco Paula Simones De Brito, Agency No. A092-107-545 Petitioner,

v. MEMORANDUM*

WILLIAM P. BARR, Attorney General,

Respondent.

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

Submitted October 14, 2020** Pasadena, California

Before: GOULD and LEE, Circuit Judges, and KORMAN,*** District Judge.

Francisco Brito, a native and citizen of Portugal, petitions for review of the

Board of Immigration Appeal’s decision affirming an Immigration Judge’s denial of

a discretionary waiver of inadmissibility under 8 U.S.C. § 1182(h). We review

* 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 Edward R. Korman, United States District Judge for the Eastern District of New York, sitting by designation. questions of law and and due process challenges de novo. Hong v. Mukasey, 518

F.3d 1030, 1034 (9th Cir. 2008). We deny the petition.

1. 8 U.S.C. § 1252(a)(2) provides that “no court shall have jurisdiction to

review . . . any judgment regarding the granting of relief under section 1182(h)” with

the exception of “constitutional claims or questions of law.” 8 U.S.C. §§

1252(a)(2)(B), (D). Brito seeks to avoid this jurisdictional bar by asserting that the

agency employed the wrong legal standard in adjudicating his application for a

waiver of inadmissibility. But contrary to Brito’s characterization of the agency’s

decisions, the agency in fact: (1) did not impose remorse as a categorical

requirement; (2) considered the absence of subsequent criminal activity following

Brito’s 1989 conviction as a positive factor; (3) accounted for the hardship to Brito

and his family; and (4) credited the testimony of Brito’s daughter. To the extent

Brito is challenging the manner in which the agency weighed the evidence, we lack

jurisdiction under 8 U.S.C. § 1252(a)(2) to review the agency’s factfinding. See

Mendoza v. Holder, 623 F.3d 1299, 1302 (9th Cir. 2010).

2. Brito has not established that any competency or translation issue

during his testimony violated due process. To prevail on a procedural due process

claim, an alien must demonstrate: (1) that the proceeding was so fundamentally

unfair that the alien was prevented from reasonably presenting his case; and (2)

resulting prejudice. Mendez-Garcia v. Lynch, 840 F.3d 655, 665 (9th Cir. 2016).

2 Brito can show neither. While there were multiple instances of translation

difficulties and momentary confusion, they were either resolved through follow-up

questioning or did not impact the substance of Brito’s testimony. Notably, Brito is

unable to identify a single occasion in which competency or translation issues

affected his testimony in a manner that may have changed the outcome of the

proceedings. Accordingly, because the record does not reflect fundamental

unfairness or resulting prejudice, Brito’s due process claim fails.

DENIED.