Francisco Madrigal-Barrera v. William Barr

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 17, 2019
• Docket: 16-73727
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAY 17 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

FRANCISCO MADRIGAL-BARRERA, No. 16-73727

Petitioner, Agency No. A078-101-944

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

Respondent.

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

Submitted May 15, 2019** Seattle, Washington

Before: O'SCANNLAIN, KLEINFELD, and FRIEDLAND, Circuit Judges.

Francisco Madrigal-Barrera (“Madrigal”) petitions for review of an order by

the Board of Immigration Appeals (“BIA”) denying his attempt to rescind his 2006

order of removal so that he can apply for adjustment of status in his current

removal proceedings. The Government does not contest that if Madrigal could

* 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). establish that a due process violation occurred in his 2006 removal proceedings

and that the violation rose to the level of a gross miscarriage of justice, he could

rescind the prior removal order. We therefore assume without deciding that

rescission of the 2006 order of removal would be available on such showings.

Because we hold that substantial evidence supports the agency’s factual

determinations underlying its conclusion that no due process violation occurred,

we deny Madrigal’s petition for review.

Madrigal contends that he did not understand that the stipulated removal

request he agreed to in 2006 included a waiver of a right to a hearing before an

immigration judge (“IJ”), specifically because he signed the request without

reading it after ICE officers told him he was required to sign, and that this

unknowing waiver renders his underlying removal order a violation of due process.

The BIA rejected this contention because it affirmed the IJ’s factual determination

that Madrigal’s testimony that he lacked understanding of the stipulation was not

credible.

We review the agency’s adverse credibility determinations for substantial

evidence. Shrestha v. Holder, 590 F.3d 1034, 1039 (9th Cir. 2010). Although

“only the most extraordinary circumstances will justify overturning an adverse

credibility determination,” id. at 1041 (quoting Jibril v. Gonzales, 423 F.3d 1129,

1138 n.1 (9th Cir. 2005)), the agency must still “provide specific and cogent

2 reasons” supporting the determination. Id. at 1042.

The agency provided sufficient reasons here to discount Madrigal’s

testimony. As the BIA explained, Madrigal was fluent in English, was educated in

the United States through the eleventh grade, and had numerous court experiences

involving paperwork and understanding rights in a criminal setting. Madrigal also

could not identify who misinformed him that he was required to sign the stipulated

removal request. These facts are sufficient to support the agency’s adverse

credibility finding. And given that Madrigal’s testimony was the sole evidentiary

basis for the alleged due process violation, the BIA did not err in concluding that

there was no gross miscarriage of justice in the 2006 proceedings.1

Petition for review DENIED.

1 Contrary to Madrigal’s assertions, if the agency’s adverse credibility finding remains in place, he cannot demonstrate a due process violation, so we need not address whether he suffered prejudice from that alleged violation.