Gabriel Martinez Ruiz v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 17, 2022
• Docket: 18-72876
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 17 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

GABRIEL MARTINEZ RUIZ, AKA Oscar No. 18-72876 Rodriguez Ruiz, Agency No. A206-412-229 Petitioner,

v. MEMORANDUM*

MERRICK B. GARLAND, Attorney General,

Respondent.

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

Submitted March 9, 2022** Pasadena, California

Before: IKUTA, LEE, and FORREST, Circuit Judges.

Petitioner Gabriel Martinez Ruiz petitions for review of the Board of

Immigration Appeals’ (BIA) decision upholding the immigration judge’s (IJ)

decision denying his application for cancellation of removal and rejecting his

* 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). ineffective assistance of counsel claim.1 We have jurisdiction under 8 U.S.C. § 1252,

and we dismiss the petition in part and deny in part.

1. Cancellation of Removal. The IJ denied Martinez Ruiz’s cancellation of

removal application as a matter of discretion, and Martinez Ruiz did not challenge

this determination to the BIA (or to us), depriving us of jurisdiction. See 8 U.S.C.

§ 1252(d)(1); Arsdi v. Holder, 659 F.3d 925, 928–29 (9th Cir. 2011). Moreover, we

lack “jurisdiction to review discretionary decisions concerning cancellation of

removal unless the petition raises a cognizable legal or constitutional question.”

Safaryan v. Barr, 975 F.3d 976, 989 (9th Cir. 2020) (cleaned up); see 8 U.S.C.

§ 1252(a)(2)(B)(i); see also Romero-Torres v. Ashcroft, 327 F.3d 887, 891 (9th Cir.

2003) (holding that we lack jurisdiction to review the BIA’s exceptional and

extremely unusual hardship determination). Martinez Ruiz did not raise any

cognizable questions. Thus, we dismiss his challenge to the denial of cancellation of

removal for lack of jurisdiction.

2. Ineffective Assistance of Counsel. A noncitizen making an ineffective

assistance of counsel claim must substantially comply with the procedural

requirements outlined in Matter of Lozada, 19 I. & N. Dec. 637 (BIA 1988). See

1 Martinez Ruiz waived any argument as to the BIA’s denial of his asylum, withholding of removal, and Convention Against Torture protection claims and its rejection of his due process claim by failing to “specifically and distinctly argue[] and raise[]” these issues in his opening brief. See Castro-Perez v. Gonzales, 409 F.3d 1069, 1070 (9th Cir. 2005) (quotation marks and citation omitted).

2 Correa-Rivera v. Holder, 706 F.3d 1128, 1131 (9th Cir. 2013). Martinez Ruiz does

not dispute that he failed to comply with the Lozada requirements. Moreover, even

if he had complied, Martinez Ruiz cannot make the requisite showing that counsel’s

deficient performance prejudiced him. Flores v. Barr, 930 F.3d 1082, 1087 (9th Cir.

2019); Rodriguez-Lariz v. INS, 282 F.3d 1218, 1227 (9th Cir. 2002). Thus, we deny

his petition as to this issue.

PETITION FOR REVIEW DISMISSED IN PART; DENIED IN PART.