Francisco Salgado-Vasquez v. William Barr

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 10, 2020
• Docket: 20-70517
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS DEC 10 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

FRANCISCO SALGADO-VASQUEZ, No. 20-70517

Petitioner, Agency No. A075-132-417

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

Respondent.

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

Submitted December 2, 2020**

Before: WALLACE, CLIFTON, and BRESS, Circuit Judges.

Francisco Salgado-Vasquez, a native and citizen of Mexico, petitions for

review of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal

from an immigration judge’s decision denying his motion to terminate proceedings

and his applications for asylum, withholding of removal, and cancellation of

removal. Our jurisdiction is governed by 8 U.S.C. § 1252. We review de novo

* 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). questions of law and we review for abuse of discretion the denial of a motion to

terminate. Dominguez v. Barr, 975 F.3d 725, 734 (9th Cir. 2020). We deny in part

and dismiss in part the petition for review.

There was no abuse of discretion in the denial of Salgado-Vasquez’s motion

to terminate because he failed to show that he was prejudiced by the alteration to

his notice to appear (“NTA”). See Kohli v. Gonzales, 473 F.3d 1061, 1068-70 (9th

Cir. 2007) (petitioner was required to show prejudice to succeed on motion to

terminate based on a defective NTA). We reject as unsupported by the record

Salgado-Vasquez’s contentions that the NTA contained a forged certificate of

service.

Salgado-Vasquez’s contentions that the IJ violated his right to due process

by determining that he had been convicted of a particularly serious crime without a

hearing fail. See Lata v. INS, 204 F.3d 1241, 1246 (9th Cir. 2000) (requiring error

and prejudice to prevail on a due process claim); see also Dent v. Sessions, 900

F.3d 1075, 1083 (9th Cir. 2018) (to show prejudice, petitioner must show the

outcome of proceedings may have been affected by the alleged due process

violation). Thus, Salgado-Vasquez’s asylum and withholding of removal claims

fail.

We lack jurisdiction to review the discretionary denial of cancellation of

removal because Salgado-Vasquez raises no colorable legal or constitutional claim.

2 20-70517 See Martinez-Rosas v. Gonzales, 424 F.3d 926, 929-30 (9th Cir. 2005) (court’s

jurisdiction to review challenges to the IJ’s discretionary determination is limited

to colorable constitutional claims or questions of law).

The record does not support Salgado-Vasquez’s contentions that the BIA or

IJ failed to consider evidence or otherwise erred in the analysis of his claims. See

Najmabadi v. Holder, 597 F.3d 983, 990 (9th Cir. 2010) (“[T]he BIA does not

have to write an exegesis on every contention.” (citation and internal quotation

marks omitted)); Fernandez v. Gonzales, 439 F.3d 592, 603 (9th Cir.

2006) (petitioner did not overcome the presumption that the BIA reviewed the

record).

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

mandate. The motion for a stay of removal (Docket Entry Nos. 1 and 6) is

otherwise denied as moot.

PETITION FOR REVIEW DENIED in part; DISMISSED in part.

3 20-70517